State v. City of San Antonio

• Decision Date: 22 January 1941
• Docket Number: No. 10949.,10949.
• Citation: 147 S.W.2d 551
• Parties: STATE ex rel. BINZ et al. v. CITY OF SAN ANTONIO et al.
• Court: Texas Court of Appeals

147 S.W.2d 551

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

No. 10949.

Court of Civil Appeals of Texas. San Antonio.

January 22, 1941.

Rehearing Denied February 12, 1941.

Appeal from District Court, Fifty-Seventh District, Bexar County; Everett F. Johnson, Judge.

Action in the nature of quo warranto by the State of Texas, on the relation of Melvin Binz and others, against the City of San Antonio and others, asserting the invalidity of a purported annexation of territory adjacent to the City of San Antonio. From a judgment for respondents, the State and relators appeal.

Affirmed.

Moursund, Ball, Moursund & Bergstrom, Van H. Howard, Jr., S. E. Roberts, and John R. Shook, all of San Antonio, for appellants.

J. I. Kercheville, Henry B. Dielmann, and J. Walter Feigenbaum, all of San Antonio, for appellees.

NORVELL, Justice.

This is an action in the nature of quo warranto brought under Articles 6253 et seq. of Vernon's Ann.Civ.Stats., by the State of Texas, acting through the District Attorney of Bexar County, upon the relation of Melvin Binz and others, against the City of San Antonio and its governing officials, asserting the invalidity of a purported annexation of territory adjacent to the City of San Antonio.

Trial was to the court without a jury and judgment rendered for the respondents. The territory in dispute was declared to be within the bounds and limits of the City of San Antonio.

The State and the relators have appealed.

There is no dispute as to the facts. The City of San Antonio is a home rule city operating under Article XI, Section 5, of the Texas Constitution, Vernon's Ann.St., and Chapter 13, Title 28, 1925 Revised Civil Statutes and amendments thereto (Articles 1165-1182f, Vernon's Ann.Civ.Stats.), having adopted a charter in accordance with the constitutional and statutory provisions above mentioned. The charter of the City of San Antonio contains provisions for the annexation of adjacent territory (Paragraph 2, Section 2, Charter of San Antonio) as authorized by Sec. 2, Art. 1175, Vernon's Ann.Civ.Stats.

In accordance with the provisions of the City Charter, the Board of City Commissioners of San Antonio, on April 29, 1940, passed a resolution ordering the introduction and reading of an ordinance providing for the annexation of the territory in dispute here. Publication of the proposed ordinance was ordered, so as to give thirty days' published notice before final passage of the ordinance, as required by the City Charter. On May 31, 1940, the ordinance of annexation was finally passed by the governing body of the City of San Antonio.

In the meantime, on May 3, 1940, a petition signed by 53 residents of the territory sought to be annexed by the City of San Antonio was presented to the County Judge of Bexar County, requesting that an election be called for the purpose of submitting to the qualified voters the question of the incorporation of the Town of Olmos Terrace under the provisions of Chapter 11, Title 28, 1925, Revised Civil Statutes, Articles 1133-1153, Vernon's Ann.Civ.Stats. The territory sought to be incorporated was identical with that described in the resolution and ordinance of annexation of the City of San Antonio. The County Judge, on May 6, 1940, ordered the requested election, which resulted in a vote favorable to incorporation. On May 20, 1940, the County Judge entered an order declaring the town of Olmos Terrace duly incorporated under the provisions of Chapter 11, Title 28, 1925, Revised Civil Statutes. It was agreed by the parties that the population of the so-called town of Olmos Terrace was 2200, and that the proceedings relating to the incorporation were in accordance...