Town of Griffing Park v. City of Port Arthur

• Decision Date: 26 February 1931
• Docket Number: No. 2057.,2057.
• Citation: 36 S.W.2d 593
• Parties: TOWN OF GRIFFING PARK et al. v. CITY OF PORT ARTHUR et al.
• Court: Texas Court of Appeals

Page 593

36 S.W.2d 593

TOWN OF GRIFFING PARK et al. v. CITY OF PORT ARTHUR et al.

No. 2057.

Court of Civil Appeals of Texas. Beaumont.

February 26, 1931.

Appeal from District Court, Jefferson County; Geo. C. O'Brien, Judge.

Suit by the Town of Griffing Park and others against the City of Port Arthur and others. Judgment of dismissal, and plaintiffs appeal.

Reversed and remanded.

Sonfield & Sonfield, of Beaumont, for appellants.

Shivers & Baker, of Port Arthur, for appellees.

WALKER, J.

Appellants were plaintiffs below, and appellees were defendants. The plaintiffs were the town of Griffing Park, a duly incorporated municipal corporation, and its duly elected and qualified mayor and aldermen, suing both in their official capacity and as taxpayers, residing and having real and personal property situated within the corporate limits of the town of Griffing Park. The defendants were the city of Port Arthur and J. W. O'Neal, mayor, F. H. Drunagle and C. B. Moore, commissioners of the city of Port Arthur. The plaintiffs brought this suit to enjoin the city of Port Arthur from annexing and absorbing the town of Griffing Park. This relief was sought on the following allegations:

(a) Prior to and at the time of the act of annexation the town of Griffing Park was a municipal corporation duly incorporated under chapter 11, title 28, R. S. 1925, and was functioning as such. The boundaries of the town of Griffing Park were specifically pleaded by plaintiffs.

(b) The city of Port Arthur was and is a municipal corporation duly incorporated and existing under and by virtue of a special charter granted it by the Legislature, being chapter 52 of the Acts of the Thirty-Sixth Legislature.

(c) Section 1, chapter 2, of the City Charter, is as follows: "Territory adjoining the corporation limits of the City of Port Arthur, regardless of shape or configuration, may be annexed to said City as follows." Article 1265, R. S. 1925, is as follows: "Any city having a population of 100,000 and under 150,000 as shown by the preceding Federal census, shall have the power and authority to amend its charter so as to extend its boundary limits by annexing additional territory adjacent and contiguous to such city, where the territory so annexed does not include any incorporated city or town having more than five thousand inhabitants according to the preceding Federal census. Such extension shall be effected in the manner following." The point was made that this charter provision and the cited article of the general statutes constituted all the grant of power to the city of Port Arthur to annex adjoining territory.

(d) On the 26th of November, 1929, an election was held in the city of Port Arthur and in adjoining territory, in which was included the town of Griffing Park, to determine whether or not the city of Port Arthur should absorb and annex this territory. The election resulted in favor of the annexation, and, by ordinance, the necessary result was declared, and, under authority of the election and the ordinance, the city of Port Arthur was attempting to extend its jurisdiction over the incorporated territory of Griffing Park. No attack was made upon the election or the manner of calling the election, nor upon the ordinance declaring the result of the election. The only attack made by plaintiffs' petition was that the act of consolidation was absolutely void because without authority of law or color of law. There was no pleading of any irregularity in the steps taken by the city of Port Arthur upon which the act of consolidation must rest. Thus, plaintiffs were attempting to plead a void and not a voidable act.

(e) It was further alleged that the city of Port Arthur did not have a population of 100,000 nor of 150,000 at the time of the annexation, but by the census of 1920 its population was only 31,513, and at the time of the annexation was "approximately 50,000."

(f) It was further alleged that the city of Port Arthur had been a municipal corporation since 1911; that it had issued bonds for various purposes which, at the time of the annexation, had not matured and would not mature for many years; that these bonds amounted to about $4,450,000, bearing interest at 5 per cent; that the city of Port Arthur had voted additional bonds in the sum of $1,605,000, which it was proposing to sell; that the bonds already sold were binding and legal obligations of the city of Port Arthur and could only be paid by the proceeds of taxes, levied against the property within the corporate limits of the city, and, if the annexation was permitted to stand, plaintiffs' property would be subject to taxes to pay off these bonds; that the city of Port Arthur was attempting to exercise jurisdiction over the property included within the corporate limits of the town of Griffing Park and to collect taxes against such property as if it were legally a part of the city of Port Arthur; that the city of Port Arthur, under the act of consolidation, would oust the town of Griffing Park of all the rights vested in it by law as a municipal corporation, seize its property, and abolish its offices, and deprive its duly qualified officers of their constitutional rights to perform the functions of their offices.

The prayer was for a temporary injunction, enjoining the city of Port Arthur from putting in force its act of annexation and upon trial for permanent relief. A temporary injunction was granted as prayed for.

When the case was called for trial appellees presented as their sole defense, as far as the transcript reflects, the following plea in abatement:

"Now comes the defendant, The City of Port Arthur, J. W. O'Neal, Mayor, C. B. Moore and F. H. Drunagle, Commissioners, and respectfully shows to the Court that this suit should be abated and dismissed, for the following reasons:

"First: This is a suit brought by Griffing Park, as an incorporated town, by L. L. Abshire, J. E. Day, E. L. Paxton, T. E. Gregory and Perry LaGrone, as individuals, and is in substance and effect a contest of the election held by the City of Port Arthur annexing said territory including the territory known as Griffing Park, and being a suit attacking the legality of the election, and same must be brought on relation of the State and not by individuals, and if defendants are mistaken, and if it is shown that the town of Griffing Park may maintain the suit, then these defendants say that the gentlemen named as plaintiffs, suing in their individual capacity, cannot bring or maintain said suit as individuals, because it is an attack on the legality of an action, and they, as individuals, cannot under the law of Texas so maintain said suit.

"Wherefore, defendants pray that this suit be in all things abated and dismissed, at plaintiffs' cost."

In appellees' brief there are references to other pleadings, but, as no such pleadings are found in the transcript, this appeal must be decided upon the plaintiffs' petition and upon defendants' plea in abatement, which constitute all the pleadings reflected by the transcript. Upon trial, the plea in abatement was sustained, and plaintiffs' suit in all things "abated and dismissed." No evidence whatever was heard by the court, either in support of the plaintiffs' petition or the plea in abatement. The judgment of the trial court was simply that plaintiffs, suing in the capacity reflected by their petition, had no right to maintain this suit.

Opinion.

As construed by the trial court, the plea in abatement was given the effect of a general demurrer. The plea confessed as true all the facts alleged by plaintiffs' petition, and merely challenged the sufficiency of these facts to constitute in law a cause of action in favor of plaintiffs. The following authorities sustain this construction of defendants' plea in abatement. Breen v. Railway Co., 44 Tex. 302; Cavin v. Hill, 83 Tex. 73, 18 S. W. 323; Price v. Wakeham, 48 Tex. Civ. App. 339, 107 S. W. 132, 133. The judgment of the court rests upon a principle of law now generally recognized by the jurisprudence of this state. This principle was thus stated by Judge Leddy, speaking for the Commission of Appeals, in Kuhn v. City of Yoakum, 6 S.W.(2d) 91: "The rule has not been deviated from in this state that the validity of an extension of territory of a city or school district can only be attacked by a direct suit in the nature of a quo warranto by the state, or in a proceeding in which the state is a party."

Appellants do not question, but concede, the soundness of the rule thus stated. However, they seek to bring their case within the following rule of equal authority in this state, which may be stated as follows: An act of a municipal...