State ex rel. Winn v. City of San Antonio

• Decision Date: 27 May 1953
• Docket Number: No. 12571,12571
• Citation: 259 S.W.2d 248
• Parties: STATE ex rel. WINN et al. v. CITY OF SAN ANTONIO et al.
• Court: Texas Court of Appeals

Page 248

259 S.W.2d 248

STATE ex rel. WINN et al. v. CITY OF SAN ANTONIO et al.

No. 12571.

Court of Civil Appeals of Texas, San Antonio.

May 27, 1953.

Rehearing Denied June 17, 1953.

Dibrell, Gardner, Dotson & Graham, Austin F. Anderson, Dist. Atty., San Antonio, for appellants.

Harvey L. Hardy, City Atty., G. Bert Smith, Jr., San Antonio, for appellees.

PER CURIAM.

This is an action in the nature of quowarranto brought under the provisions of Article 6253 et seq., Vernon's Ann.Tex.Stats., by the State of Texas acting upon the relation of Murrary Winn, Jr., and others, claiming to be the duly elected and qualified officials of the Town of Coker Estates, purportedly organized under Title 28, Chapter 11, Articles 1133 et seq., Vernon's Ann.Tex.Stats. The State, represented by the Criminal District Attorney of Bexar County, contended that certain annexation ordinances and proceedings of the City of San Antonio were invalid and that the City was wrongfully asserting authority over territory lying within a legally organized municipality known as the Town of Coker Estates. Judgment was rendered for the City upon a motion for summary judgment supported by affidavits. Rule 166-A, Texas Rules of Civil Procedure. The State of Texas and the relators have appealed. Upon proper motion and by reason of the nature of the case, the submission of this appeal has been advanced upon the docket.

Appellants present a total of eighteen points which assert three main contentions: First, that the initial ordinance of the annexation proceedings was void as it included within the description of the territory sought to be added to the City certain lands not legally subject to annexation; Second, that the annexation ordinances were void in that they had not been published in a daily paper, as required by the City Charter, and Third, that the action of the governing body of the City of San Antonio in adopting the annexation ordinance was capricious and arbitrary and hence void.

The City of San Antonio is a Home Rule City operating under the provisions of Article 11, § 5, of the Texas Constitution, Vernon's Ann.St., and Title 28, Chapter 13, Article 1165 et seq., Vernon's Ann.Civ.Tex.Stats. Article 1175, § 2, expressly provides that a home rule city may exercise, 'The power to fix the boundary limits of said city, to provide for the extension of said boundary limits and the annexation of additional territory lying adjacent to said city, according to such rules as may be provided by said charter.'

Acting under the constitutional and legislative grants of authority above referred to, the City of San Antonio adopted the following Charter provision:

'The City shall have power, by ordinance, to fix and change the bounds and limits of the City and to provide for the extension of the said bounds and limits and the annexation of additional territory lying adjacent to the City with or without the consent of the territory and the inhabitants thereof annexed; provided, however, that upon introduction of such an ordinance, or any amendment thereto, it shall be published one time, prior to its final passage, in some daily newspaper published in the City and such ordinance shall not be thereafter finally passed until at least 30 days have elapsed after publication. The City shall likewise have power to annex additional territory, lying adjacent to the City, and the inhabitants thereof, as may be authorized by, and in the manner and from prescribed by any general law of Texas.' Section 3, Paragraph 2, of the Charter of the City of San Antonio.

The actions of the City of San Antonio and the purported village known as the Town of Coker Estates with reference to the territory in question all took place in 1952. Stated in chronological order, they were as follows:

On March 12th, the governing body of the City of San Antonio adopted a preliminary ordinance purporting to annex approximately 120.04 square miles of additional territory to the City. In accordance with the provisions of the City Charter relating to the adoption of legislative enactments of this character, the ordinance provided that:

'After the introduction of this ordinance, and after it has been amended as desired by the City Council of the City of San Antonio, for final passage, it shall be published in the 'Commercial Recorder', in the City of San Antonio, one time; and shall not be passed finally thereafter until at least thirty days have elapsed after said publication.'

On April 7th the County Judge of Bexar County canvassed the returns of an election held on April 5th and entered an order setting out the boundaries of the Town of Coker Estates and declared the same duly incorporated under the provisions of Title 28, Ch. 11, Vernon's Ann.Civ.Stats.

On July 31st, the Council of the City of San Antonio passed a second ordinance amending the ordinance of March 12th and reducing the territory to be annexed to 79.74 square miles and making certain other changes hereinafter noted. This amending ordinance was likewise ordered published in the Commercial Recorder.

On September 25th, the City Council of the City of San Antonio passed and adopted the ordinance as amended.

The rule of law applicable to the situation is stated by the Supreme Court in Beyer v. Templeton, 147 Tex. 94, 212 S.W.2d 134, 138, as follows:

'In the event a municipal corporation seeks to annex adjacent territory, and the residents thereof seek to incorporate as a separate municipal corporation, the rule in this State is that whoever first commences legal proceedings asserting authority over the territory in question thereby acquires jurisdiction over same, and this jurisdiction cannot be defeated thereafter by the adverse party's subsequently attempting to exercise jurisdiction. State ex rel. George v. Baker, 120 Tex. 307, 40 S.W.2d 41; State ex rel. Binz v. City of San Antonio, Tex.Civ.App., 147 S.W.2d 551, writ of error refused; City of Houston v. State ex rel. City of West University Place, 142 Tex. 190, 176 S.W.2d 928.' (Italics ours.)

Appellants contend that the San Antonio ordinance of March 12th was wholly void, and for that reason the City did not first assert authority over the disputed territory, but that the Town of Coker Estates acquired jurisdiction thereof by reason of its April incorporation. The determination of the priority of these conflicting jurisdictional claims depends upon whether or not the ordinance of March 12th can be properly regarded as an assertion of authority over the territory in question. Appellants say that this ordinance is wholly nugatory because, (a) there is an ambiguity in the field notes setting out the western boundary of the territory purportedly covered by the ordinance; (b) the territory described includes military reservations owned by the United States Government, and (c) the territory described also includes two incorporated towns, namely, Balcones Heights and Castle Hills. The last ground stated is particularly emphasized by appellants.

To our mind all these contentions are effectually answered by the amending ordinance of July 31st, wherein a lesser territory and, consequently, new and different boundaries are set out, and it was expressly declared that, 'The aforesaid boundary and limits shall include the territory over which the City of San Antonio has jurisdiction; provided, however, that there is no intent nor has there ever been any intent to include within the area annexed by this ordinance, any municipality lawfully incorporated under Title 28 of the Revised Civil Statutes of Texas of 1925, prior to the 12th day of March, 1952.' The contention as to military reservations seems fully answered by the decision of the Supreme Court in City of Wichita Falls v. Bowen, 143 Tex. 45, 182 S.W. 695, 154 A.L.R. 1434.

It is undisputed that the territory described in the County Judge's order of April 7th, relating to the Town of Coker Estates, lies within the boundaries of the territory described in all three ordinances of the City of San Antonio, adopted on March 12th, July 31st and September 25th, respectively. The passage of the first ordinance was an assertion of authority over such territory. This ordinance was not void bit, on the contrary, was subject to amendment. State ex inf. Taylor ex rel. Kansas City v. North Kansas City, 360 Mo. 374, 228 S.W.2d 762; 5 McQuillen on Municipal Corporations (3rd Ed.) 337. By the amended ordinance of July 31...