Steinhagen v. Eastham

• Citation: 233 S.W. 660
• Decision Date: 02 June 1921
• Docket Number: (No. 720.)
• Parties: STEINHAGEN et al. v. EASTHAM et al.
• Court: Texas Court of Appeals

Page 660

233 S.W. 660

STEINHAGEN et al. v. EASTHAM et al.

(No. 720.)

Court of Civil Appeals of Texas. Beaumont.

June 2, 1921.

Rehearing Denied June 23, 1921.

Appeal from District Court, Jefferson County; E. A. McDowell, Judge.

Suit by C. S. Eastham and others against B. A. Steinhagen and others. From judgment granting plaintiffs an injunction, defendants appeal. Reversed, and injunction dissolved.

Chas. D. Smith and Gordon, Lawhon & Pool, all of Beaumont, for appellants.

E. B. Pickett, Jr., of Liberty, for appellees.

FOSTER, Special Judge.

This is an appeal from a judgment of the district court of Jefferson county granting plaintiffs a temporary injunction restraining defendants, the mayor, city manager, commissioners, and tax collector of the city of Beaumont, from enforcing, or attempting to enforce, any ordinance of said city within the territory designated as the "French district" and the "South Park district," and from levying, collecting, or attempting to collect, any taxes against or upon any property, real or personal, situated therein. Plaintiffs (appellees here) are residents of said districts, and own property therein.

The territory of the two districts named was not embraced within the boundaries of the city as fixed by, or in pursuance of, the provisions of the charter of 1909, which charter was granted by special act of the Legislature (chapter 92), and under which the city existed as a corporate municipality until December 30, 1919. On said date a charter, framed by a commission, was adopted by a vote of the qualified voters residing within the limits of the city as fixed by the old charter (1909). Beaumont at said time was a city of more than 5,000 inhabitants, and the new charter (of December 30, 1919) was framed, and the election held, under and in conformity with chapter 147, General Laws of the Thirty-Third Legislature. This is the Enabling Act, approved April 7, 1913, which put into effect the "Home Rule Amendment" to our state Constitution, and constitutes articles 1096a to 1096i, inclusive, Vernon's Sayles' Texas Civil Statutes. The qualified voters of the French district and the South Park district, including plaintiffs, were not permitted to vote at said election. The boundaries of the city as fixed by the new charter, adopted in 1919, included the territory of the two districts mentioned, and excluded the "Chaison tract" of 49 acres, which was a part of the city as defined in the charter of 1909.

Plaintiffs alleged that the charter of 1919, adopted under the Home Rule Amendment and the Enabling Act, could not, when adopted, embrace territory other than that defined in the then existing charter, and that the attempt to include the French and South Park districts was void; that no new territory could be annexed except in conformity with the old charter. Here it may be stated that the procedure prescribed by the old charter for changing the city's boundaries is materially different from the method provided in the Enabling Act.

Another ground of attack by plaintiffs asserts that the election of December 30, 1919, was void, as an attempt to alter the city charter in violation of the Home Rule Amendment, which provides "that no city charter shall be altered, amended, or repealed oftener than every two years;" and it was alleged that the city of Beaumont had on three occasions, within two years prior to December 30, 1919, amended its charter— twice by elections, that each resulted in the city levying an increased school tax, and once by annexing to and including within the city's boundaries "block 1 of the Oaks Addition." The tax elections were held in 1918 and 1919, respectively, and block 1 of the Oaks Addition was annexed in October, 1919. Its annexation was attempted in pursuance of the method provided in the charter of 1909.

These contentions present the questions that we regard as decisive of this appeal, and the argument of appellees may be briefly summarized thus: (a) That the charter of 1909, including section 3 thereof, providing the procedure for annexing territory to the city, remained in full force until the result of the election of December 30, 1919, was ascertained, and that, since such procedure was not followed in annexing the French and South Park districts, their status was unaffected by said election, and they are therefore not a part of the city; (b) that the city could not adopt a new charter at said election, and at the same time enlarge its territorial limits, in the manner provided by the Enabling Act, because, it is asserted section 3 of the charter of 1909 was unaffected by said act until the new charter was adopted by the election of December 30, 1919; and (c) that the election for adopting a new charter was within the inhibition of the Constitution forbidding alteration, amendment, or repeal of a city charter oftener than every two years.

The contentions and argument of appellees, as stated, may, we think, properly be said to raise but a single question of law—the construction of the Home Rule Amendment and the Enabling Act. If the provisions of said act in reference to amendment of charters were applicable to the city of Beaumont from the time it became a law on July 1, 1913, and did not depend for their vitality (as applied to said city) upon the election of December 30, 1919, then it follows that the tax elections and the annexation of block 1 of the Oaks Addition were not valid amendments to the city charter, and they interposed no obstacle to the adoption of the new charter, since it is admitted that the procedure to amend prescribed by the Enabling Act was not attempted to be applied. In this we do not mean to indicate that we regard said elections and annexation as amendments to the charter, aside from the question with which we are here concerned. Such a consideration suggests questions that it is not necessary now to decide, though the Court of Civil Appeals of the Third District recently held that the addition of new territory to the city of Waco constituted an amendment or alteration of the city charter. City of Waco v. Higginson, 226 S. W. 1084.

The Home Rule Amendment was adopted November 5, 1912. It constitutes section 5 of article 11 of the Constitution, and reads as follows:

"Cities having more than five thousand (5,000) inhabitants may, by a majority vote of the qualified voters of said city, at an election held for that purpose, adopt or amend their charters, subject to such limitations as may be prescribed by the Legislature, and providing that no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the state, or of the general laws enacted by the Legislature of this state; said cities may levy, assess and collect such taxes as may be authorized by law or by their charters; but no tax for any purpose shall ever be lawful for any one year, which shall exceed two and one-half per cent. of the taxable property of such city, and no debt shall ever be created by any city, unless at the same time provision be made to assess and collect annually a sufficient sum to pay the interest thereon and creating a sinking fund of at least two per cent. thereon; and provided, further, that no city charter shall be altered, amended or repealed oftener than every two years."

The first article of the Enabling Act, except for slight differences in punctuation and the use of the word "providing" where "provided" occurs in the amendment, is identical with said amendment. The next article of said act, being article 1096b of the statute reads:

"The legislative or governing authority of any incorporated city, having more than five thousand inhabitants may, by a two-thirds vote of its members, or upon petition of ten per cent. if the qualified voters of said city, shall provide by ordinance for the submission of the question, `Shall a commission be chosen to frame a new charter?' The ordinance providing for the submission of such question shall require that it be submitted at the next regular municipal election, if one should be held, not less than thirty nor more than ninety days after the passage of said ordinance; otherwise it shall provide for the submission of the question at a special election to be called and held not less than thirty days, nor more than ninety days, after the passage of said ordinance and the publication thereof in some newspaper published in said city. The ballot containing such question shall bear no party designation, and provision shall be made thereon for the election from the city at large of a charter commission of not less than fifteen members or more than one member for each three thousand inhabitants, provided, that a majority of the qualified voters, voting on such question shall have voted in the affirmative. The charter so framed by said commission shall be submitted to the qualified voters of said city at an election to be held at a time fixed by the charter commission not less than forty days nor more than ninety days after the completion of the work of the charter commission; provision for which shall be made by the legislative or governing authority of the city in so far as not prescribed by general law. Not less than thirty days prior to such election the legislative or governing authority of said city shall cause the city clerk or city secretary to mail a copy of the proposed charter to each qualified voter in said city as appears from the tax collector's rolls for the year ending January 31st, preceding said election. If such...