State v. City of Sulphur Springs, 6405.

• Decision Date: 07 October 1948
• Docket Number: No. 6405.,6405.
• Parties: STATE ex rel. GRAVES et al. v. CITY OF SULPHUR SPRINGS.
• Court: Texas Court of Appeals

214 S.W.2d 663

STATE ex rel. GRAVES et al. v. CITY OF SULPHUR SPRINGS.

No. 6405.

Court of Civil Appeals of Texas. Texarkana.

October 7, 1948.

Rehearing Denied October 28, 1948.

Appeal from District Court, Hopkins County; Chas. Berry, Judge.

Quo warranto suit by the State of Texas on the relation of J. W. Graves and others against the City of Sulphur Springs to test the validity of an annexation ordinance adopted by city. From a judgment dismissing their suit after special exceptions to petition had been sustained, relators appeal.

Judgment affirmed.

Sellers & Fanning, of Sulphur Springs, and Eugene Brady, of Greenville, for appellants.

Smith & Hicks and Ramey & Ramey, all of Sulphur Springs, for appellee.

HALL, Chief Justice.

This is a Quo Warranto suit brought by the State of Texas on relation of J. W. Graves and others against the City of Sulphur Springs, a municipal corporation, to test the validity of an ordinance passed by the city annexing certain territory to the City of Sulphur Springs. The relators all live in the territory annexed.

The trial court sustained special exceptions No. 2 to 14 of the defendant's answer to the plaintiffs' petition; plaintiffs declined to amend and elected to abide by their pleadings, whereupon the trial court entered its judgment dismissing plaintiffs' suit.

Appellants bring forward 14 points, the first of which is: "The trial court erred in dismissing plaintiffs' (appellants') suit because plaintiffs' petition stated a cause of action entitling it and the relators to the relief therein sought."

This point presents the controlling issue here.

On December 2, 1947, the City of Sulphur Springs enacted an ordinance annexing certain territories lying north of and adjacent to the present city limits of the City of Sulphur Springs and making said territory a part of said city. Said ordinance provides that —

"From and after the effective date of this ordinance, all of the property lying within the limits set out above, and all the persons living and residing therein, shall be entitled to and receive all of the rights and privileges accorded the citizens of the City of Sulphur Springs, and likewise, shall be subject to all regulations, restrictions, taxes, ordinances, and laws of the said City of Sulphur Springs, Texas.

"That from and after the effective date of this ordinance, the City Limits of Sulphur Springs shall be extended and include the territory annexed hereby."

The territory annexed was fully described in the ordinance. There is no contention by appellants that the ordinance was not in due form and not regularly enacted. Appellants plead fully the unreasonableness of the ordinance incorporating within the city the territory here involved and make the contention that it bears no reasonable relation to the present needs of the city or its future growth. It is also alleged by appellants that the territory was annexed by the city for the sole and only purpose of mulcting the owners thereof of taxes to pay the city's existing indebtedness with no possible return to the inhabitants of the annexed territory in the way of improvements. It is alleged that the territory annexed is a long narrow strip of land some two miles in length; also that the residents of the territory did not request annexation to the city, nor were they consulted with respect thereto. The pleadings contain an allegation that the territory annexed is pastoral lands used for farming and dairying.

Sulphur Springs is a Home Rule City, Sec. 37 of its charter provides that: "The city commission shall have power by ordinance to annex any additional area lying adjacent to the city. Such an area annexed shall become a part of the City of Sulphur Springs."

R.S., art. 1175, Sec. 2, provides: "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."

This statute derives its power from art. 11, Sec. 5, State Constitution, Vernon's Ann.St. commonly known as the Home Rule Amendment.

It is now the law that the action of a Home Rule City in annexing territory adjacent to it under authority of the constitutional and statutory provisions set out above is legislative in character and cannot be disturbed by courts of justice in this state so long as the procedure employed by the city is regular. "Their present power in this regard, so far as legislative action is concerned, is limited only by the requirement that the territory to be used for that purpose must be adjacent to such municipality."

City of Houston et al. v. State ex rel. City of West University Place, 142 Tex. 190, 176 S.W.2d 928, 931, (opinion by Com. of App. and adopted by the Supreme Court); State v. City of Waxahachie, 81 Tex. 626, 17 S.W. 348. "This power of a Home Rule City to annex territory, being legislative power, is therefore not subject to being revised by the judicial power of the courts."

City of Houston v. State ex rel., supra, citing City of Gladewater v. State, 138 Tex. 173, 157 S.W.2d 641. Under the above holdings appellants' allegations become immaterial and the trial court was correct in sustaining the exceptions thereto. City of Waco v. Higginson, Tex.Com.App., 243 S. W. 1078; see also Cohen v. City of Houston, Tex.Civ.App., 176 S.W. 809; and Tex. Civ.App., 205 S.W. 757 (writ refused in both cases). This is true for the reason as said above, no attack is made on the regularity of the proceedings by the city in annexing the territory, and admittedly the annexed territory lies adjacent to the city. It was said by Judge Hickman in the City of Gladewater v. State, supra [138 Tex. 173, 157 S.W.2d 642]: "It is therefore settled that the statute prescribes a limitation as to the width of the territory to be annexed under its provisions. The effect of the judgment of the Court of Civil Appeals herein is to prescribe another limitation. We have concluded that in the Waxahachie case, supra, relied upon by the trial judge, it was definitely decided that no other limitation may be prescribed by the courts."

We feel now as we did when we handed down the opinion of this court, State v. City of Gladewater, Tex.Civ.App., 139 S. W.2d 283, which was later reversed by the Supreme Court in City of Gladewater v. State, 138 Tex. 173, 157 S.W.2d 641, that under proper pleadings, as here, appellants should be permitted to try the issue of the reasonableness of the ordinance annexing the territory with respect to the necessity for annexation. No municipal corporation should have unbridled legislative authority to annex adjacent territory which bears no reasonable relation to its needs. However, from the decisions cited above as we construe them, one is precluded from trying out such issues; they are immaterial.

Therefore, based upon the holdings of the Supreme Court, especially in the City of Houston v. City of West University Place, supra, and the City of Gladewater v. the State, supra, the judgment of the trial court is affirmed.

WILLIAMS, Justice, (concurring).

I heartily subscribe to the reasoning set forth in the dissenting opinion by Justice Harvey. I feel that it is within the province of a court of justice to stay or prevent an attempted legal fraud. As expressed in the dissenting opinion and in effect by me in State v. City of Gladewater, Tex.Civ.App., 139 S.W.2d 283, 286: "It is hardly conceivable that the...