Tod v. City of Houston

• Decision Date: 21 October 1925
• Docket Number: (No. 496-4133.)
• Citation: 276 S.W. 419
• Parties: TOD et al. v. CITY OF HOUSTON.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

276 S.W. 419

TOD et al. v. CITY OF HOUSTON.^*

(No. 496-4133.)

Commission of Appeals of Texas, Section B.

October 21, 1925.

Error to Court of Civil Appeals of First Supreme Judicial District.

Suit by Mrs. Osceola E. Tod and others against the City of Houston. A decree for plaintiffs was reversed by the Civil Court of Appeals (258 S. W. 839), and plaintiffs bring error. Affirmed.

J. S. Bracewell and H. H. Cooper, all of Houston, for plaintiffs in error.

Sewell Myer and Roy Scruggs, both of Houston, for defendant in error.

POWELL, P. J.

The opinion of the Court of Civil Appeals can be found in 258 S. W. 839. It is complete in every way, and we do not think it necessary to repeat that statement here. We shall make such statement only as has a bearing upon the two real issues in the case.

On the 17th day of July, 1916, the city of Houston extended its then city limits so as to include adjacent territory known as block 38 of the Port Houston addition to said city, comprising lots 1 to 16, inclusive, thereof. This annexation was had in compliance with section 2b of the charter of the city of Houston, as amended in 1913 under the Home Rule Amendment of the Constitution. This section provided for extension of the city limits by annexation of adjacent territory with or without the consent of the territory or inhabitants being so annexed. Immediately upon such annexation being effected, it is agreed in the statement of facts that the city of Houston —

"has exercised the municipal functions over the territory included within the ordinance of 1916, by levying, assessing, and collecting taxes in said territory since that time, by issuing building permits, and that said territory has been continuously treated and regarded by the city authorities as a part of the city of Houston since the passage of said ordinance of 1916."

There seems to have been no protest against this annexation until Mrs. Tod, a property owner in the annexed territory, filed this suit on February 15, 1919. In that suit, she asked that the city be enjoined from the collection of taxes of every kind so far as her property was concerned. We shall first refer to taxes for general municipal purposes, and leave the school tax for later discussion. The trial court enjoined the collection of all taxes. The Court of Civil Appeals reversed the judgment of the trial court and rendered judgment for the city of Houston in a very able opinion written by Chief Justice Pleasants.

The Court of Civil Appeals did not go into the validity of the extension of the city for general purposes so as to include the Tod property. It held as follows upon this point:

"This brings us to a consideration of appellant's proposition that the question of the validity of the extension of the city limits, so as to include appellees' property, cannot be raised collaterally in a suit of this character. The city, in making the extension, having acted under authority conferred upon it by law, and the ordinance making such extension not being void on its face for want of authority in the city council to pass it, or for any other reason, and the city having assumed and being now in the exercise of municipal authority over all of the annexed territory, the question of whether Mrs. Tod's property was so situated that its inclusion in the extension was a wrong and injustice to her cannot be raised in this suit. The stability of municipal boundaries and the orderly and efficient administration of municipal government requires that the judgment of the city authorities, empowered by law to fix the boundaries of the municipality, as to the propriety or justice of including particular property within such boundaries, cannot, after such boundaries have been fixed, be questioned by the owner of the property unless the state, through its proper officers, join in a suit brought directly for that purpose. We think this conclusion is sustained by an unbroken line of authorities. Ex parte Koen, 58 Tex. Cr. R. 279, 125 S. W. 401; State v. Dunson, 71 Tex. 65, 9 S. W. 103; Cohen v. City of Houston (Tex. Civ. App.) 176 S. W. 809; Cohen v. Houston (Tex. Civ. App.) 205 S. W. 757; City of Carthage v. Burton, 51 Tex. Civ. App. 195, 111 S. W. 440; Railway v. Bratcher, 54 Tex. Civ. App. 10, 118 S. W. 1091; Short v. Gouger (Tex. Civ. App.) 130 S. W. 267; Graham v. Greenville, 67 Tex. 62, 2 S. W. 742; El Paso v. Ruckman, 92 Tex. 86, 46 S. W. 25; Parker v. Harris County Drainage District No. 2 (Tex. Civ. App.) 148 S. W. 351; Brennan v. City of Weatherford, 53 Tex. 330, 37 Am. Rep. 758; Crabb v. Celeste Independent School District, 105 Tex. 197, 146 S. W. 528, 39 L. R. A. (N. S.) 601, Ann. Cas. 1915B, 1146; State v. Bradshaw (Tex. Civ. App.) 228 S. W. 658; Town of Henderson v. Davis, 106 N. C. 88, 11 S. E. 573; Town of Searcy v. Yarnell, 47 Ark. 269, 1 S. W. 319; State v. Fuller, 96 Mo. 165, 9 S. W. 583; City of Houston v. Little (Tex. Civ. App.) 244 S. W. 247."

We have read these authorities cited by the Court of Civil Appeals, and they seem to sustain that court. Our Supreme Court has repeatedly held to this effect. We quote from the opinion of that court in the case of Crabb v. Celeste Independent School District, 105 Tex. 197, 146 S. W. 528, 39 L. R. A. (N. S.) 601, Ann. Cas. 1915B, 1146, as follows:

"By reason of this view it will not be necessary to discuss that feature of the case further than to suggest that, since the Celeste independent school district, a quasi municipal corporation, was acting under color of law, its legality could only be determined by a suit brought for that purpose in the name of the state, or by some one under the authority of the state who has a special interest affected by the existence of such corporation. Plaintiffs, in the capacity in which they sued, could not maintain a cause of action for the purpose of annulling the independent school district. Brenham v. Bradshaw [Brennan v. Weatherford] 53 Tex. 337, 37 Am. Rep. 758; Graham v. City of Greenville, 67 Tex. 62 [2 S. W. 742]; City of El Paso v. Ruckman, 92 Tex. 89 [46 S. W. 25]."

The reason for this rule is well stated by the court itself, and we think the decisions are sound. Much harm could come from permitting individual citizens from year to year to collaterally attack the validity of a city government. It seems much better to require a direct attack promptly made by the state, or some one in authority. But we do not care to rest our opinion upon this rule. Even if we consider the claims of Mrs. Tod, we find that she is not entitled to enjoin the collection of these taxes. If the city of Houston had a right to annex this territory, it had a right to tax the property situated therein for general city purposes, unless prohibited from doing so by law. Was the territory lawfully annexed? We think so. This question has been repeatedly before our courts, and similar extensions have always been held valid. See Cohen v. City of Houston, 176 S. W. 809; Cohen v. City of Houston, 205 S. W. 757; Eastham v. Steinhagen, 111 Tex. 597, 243 S. W. 457; City of Waco v. Higginson, 243 S. W. 1078. In the Cohen Cases, writs of error were denied by the Supreme Court. In the Steinhagen Case, the opinion was by our Supreme Court, written by Justice Greenwood, and the Cohen Cases were approved. In the Higginson Case, the opinion was by this section of the Commission of Appeals. We followed the other cases just mentioned.

In one of the Cohen Cases, the city of Houston almost doubled its size by the annexation there involved. In the Steinhagen Case, Beaumont added several new sections by the annexation there in question. In the Higginson Case, a vast amount of land was added to the city of Waco. In the instant case, the ordinance of 1916 added a tract of land; the farthest point probably being less than 2 miles from the former city limits of Houston. The property of Mrs. Tod was only about 1½ miles from the prior city limits of Houston. The city of Houston spent millions for a municipal wharf. A port is a great asset to a city. It seems to be a proper municipal function. The city limits had for some time included the principal municipal wharves. In 1916, the boundaries were extended so as to include land ranging from 1½ to 2 miles down the channel. A map of the extension accompanies the record. It shows several private wharves and industries within this territory. There is a probability of immediate development of the city of Houston in this new territory. It is near enough to the thickly settled part of Houston to justify the city of Houston in the view that its growth would soon include the territory annexed. Where that is true we do not think it could be seriously contended that the city had exceeded its authority. There is no express limitation upon the power of a city to annex adjacent territory. Therefore the courts themselves must write such limitation into the law if any limitation is ever enforced. Under the wording of this and similar city charters, the city of Houston could block up a strip of land adjacent to its present boundaries and run an extension for an unlimited distance, taking in land which in all probability would not be settled up as a part of the city for years and years. We do not believe the Legislature intended to authorize any such extension by a city. But we think the courts would be entirely unauthorized to say that Houston abused its discretion or acted beyond the clear intent of the statute in annexing this territory under the facts here present.

In the Cohen and Higginson Cases, agricultural lands were included in the scheme of annexation. But, they were near enough to the developed part of the city in each case to justify the conclusion that the city was ready to convert the farms upon the agricultural lands into homes for the people of the city. We think these extensions must be gradual and come about from time to time as the city itself expands and knocks at the gates of the proposed extensions....