Town of Port Acres v. City of Port Arthur

• Decision Date: 13 October 1960
• Docket Number: No. 6392,6392
• Citation: 340 S.W.2d 325
• Court: Texas Court of Appeals
• Parties: TOWN OF PORT ACRES et al., Appellants, v. CITY OF PORT ARTHUR et al., Appellees.

Page 325

340 S.W.2d 325

TOWN OF PORT ACRES et al., Appellants, v. CITY OF PORT ARTHUR et al., Appellees.

No. 6392.

Court of Civil Appeals of Texas, Beaumont.

Oct. 13, 1960.

Rehearing Denied Nov. 9, 1960.

George Camp, Beaumont, B. T. McWhorter, Port Arthur, for appellants.

Jack Voyles, Port Arthur, Keith, Mehaffy, McNicholas & Weber, Beaumont, for appellees.

McNEILL, Justice.

This quo warranto action was instituted by the State on relationship of the City of Port Arthur against the Town of Port Acres and its Mayor and City Councilmen Martin Le Piniec, Alfred Wolfe, Austin Newsome, Jack Meguez, Frank Philyaw, and Vernon Chauvin, challenging the validity of the incorporation proceedings of said Town. The petition alleged that the area known as the Town of Port Acres was lying adjacent to the city limits of the City of Port Arthur on February 24, 1958, and at all times since and that on said date the City Commission of the City of Port Arthur introduced and had the first reading of proposed Ordinance No. 409, the object of which was on final passage to annex the Port Acres area to the City of Port Arthur. Said ordinance was referred to and made a part of the petition. The petition then alleged that by the first reading of said proposed ordinance the City of Port Arthur acquired exclusive jurisdiction of the land involved; that thereafter on the 22nd day of July, 1959, the City Commission of said city passed to third reading Ordinance No. 409 and on the 24th day of November, 1959, the City Commission finally adopted and passed said Ordinance No. 409 as Ordinance No. 2549, and the petition alleged that said ordinance has been in full force and effect since said last date; that same is a valid and effective ordinance of the city, making the territory annexed therein legally a part of the City of Port Arthur. It was also alleged that a portion of the territory annexed, described in Ordinance No. 409, included the territory within the boundaries of Jefferson County Water Control & Improvement District No. 5; that because of certain proceedings calling for an election in said district upon the question of issuing bonds for certain needed improvements, which were necessary prerequisite to the annexation of the area to the City of Port Arthur, the City Commission of Port Arthur deferred final action on Ordinance 409 until the date shown; that on November 2, 1959, said water district had not completed the issuance and sale and delivery of the bonds which had been authorized by the voters but that on said November 2, 1959, the County Judge of Jefferson County entered an order setting aside an order theretofore entered by him calling for an election in the Town of Port Acres, Texas to determine whether the same should become an incorporated town under the laws of the State; and that within a matter of hours after the entry of such order by the County Judge the City Commission of the City of Port Arthur met in special session and adopted Ordinance No. 2535 of said city which was referred to and incorporated as a part of the petition. As this ordinance immediately became effective it annexed all of the lands lying next to the City of Port Arthur known as the Port Acres area; that said Ordinance No. 2535 was a valid and lawful exercise of the powers of said city, and that it is in full force and effect and that it has never been repealed or modified; that by virtue thereof the area known as the Town of Port Acres became and is a part of the City of Port Arthur.

The petition quoted art. 1, Sections B and C of said Ordinance No. 2535 and then pleaded that Section C was inserted in said ordinance by mistake or clerical error and that the intent of said ordinance was such that Section C should be disregarded or omitted and alleged generally that said ordinance should be construed so that it would be held valid and effective so as to legally incorporate the disputed area as part of the City of Port Arthur. In view of the turn that this case has taken, we feel that the entire Ordinance No. 2535 should be copied here.

'Ordinance No. 2535

'An Ordinance Annexing Territory Adjacent and Contiguous to the City of Port Arthur Pursuant to Vernon's Annotated Civil Statutes, Article 1175 (2) and Chapter I, Section 4 of the Charter of the City of Port Arthur (as Amended); Providing That the Consent of Said Annexed Territory and the Inhabitants Thereof is Not Required, and an Election Will Not Be Held; Providing Savings Clauses; and, Providing the Effective Date of the Annexation Shall Be Upon Final Reading and Adoption of This Ordinance; and, Repealing All Ordinances or Parts of Ordinances in Conflict Herewith.

'Be It Ordained By the City Commission of the City of Port Arthur, Texas:

'Article 1. Territory Annexed

'A. Pursuant to Chapter I, Section 4 of the Charter (as amended) of the City of Port Arthur, there is hereby annexed to the City of Port Arthur the territory described in Article 1, Section B of this Ordinance. (Said territory is hereinafter styled the Annexed Territory.)

'B. The Annexed Territory is comprised of the following: All of that certain parcel of land (lying and being situated in Jefferson County, Texas) which comprises all the territory and lands lying within and encompassed by the territorial limits or boundaries herein described:

'(1). Bounded on the North by the North boundary line of Highway No. 365, on the East by the East right of way line of Highway No. 347, on the South by the South right of way line of Highway No. 73 between Highway No. 347 and the South boundary line of W. C. I. D. No. 5, and on the West by the East boundary line of W. C. I. D. No. 5.

'(2). All of that certain parcel of land lying and being situated in Jefferson County, Texas, which comprises all the territory and lands lying within and encompassed by the territorial limits or boundaries of Jefferson County Water Control and Improvement District Number Five (5) as said limits or boundaries now exist and are manifest of record with the exception of all that portion of Lot No. 14, Block No. 25, Lot No. 11, Block No. 1 in Port Acres Subdivision lying north of Farm to Market Road No. 365; excluding and excepting, however, the following:

'(a). Any land or area within the Annexed Territory which is already a part of and is incorporated within the Corporate Limits of the City of Port Arthur; and,

'(b). Any land or area within the Annexed Territory which is not within the jurisdiction of the City of Port Arthur to annex.

'C. The lands and areas described in Article 1, Section B(1) and (2) are hereby excluded and excepted from the Annexed Territory as fully as if they had been expressly described and excepted from the Annexed Territory.

'Article 2. Consent of Inhabitants of Annexed Territory not Required and Election will not be held

'A. Pursuant to the authority of Vernon's Annotated Civil Statutes, Art. 1175(2) and Chapter I, Section 4 of the Charter of the City of Port Arthur (as amended), the City Commission hereby determines that said annexation shall become effective without the consent of the Annexed Territory and the inhabitants thereof.

'B. The Charter of the City of Port Arthur does not authorize an election within the City to determine whether or not the Annexed Territory shall be annexed; therefore, pursuant to, and in accordance with Vernon's Annotated Civil Statutes, Art. 1175(2) and Chapter I, Section 4 of the Charter of the City of Port Arthur (as amended), no election concerning the annexation will be held in the City of Port Arthur or in the Annexed Territory.

'Article 3. Annexed Territory to be Part of City

'A. From and after the passage of this Ordinance, pursuant to the provisions of said Charter, the above described Territory shall be a part of the City of Port Arthur for all purposes and shall be subject to all the laws, rules, regulations and ordinances of said City.

'Article 4. Savings Clauses

'A. Should any part of this Ordinance be declared invalid by a Court of Competent Jurisdiction, it shall not effect or vary the remaining parts of the Ordinance.

'B. Should this Ordinance for any reason be ineffective as to any part of this Annexed Territory hereby ordained annexed, such ineffectiveness as to any such part or parts of the Annexed Territory shall not affect the effectiveness of this Ordinance as to all the remainder of the Annexed Territory.

'Article 5. Effective Date of Ordinance

'A. This being an Ordinance for which publication is not required under the Charter of the City of Port Arthur, it shall not be published but shall take effect and be in force immediately from and after is passage.

'Read, Adopted and Approved by 5 votes in favor of this Ordinance and 0 votes against this Ordinance at a Special Meeting of the City Commission of the City of Port Arthur, Texas, held this 2nd day of November, A.D., 1959.'

The petition then alleged that on or about November 20, 1959, upon a petition submitted by more than 20 signatures of qualified voters residing within the limits of the proposed town to be known as Port Acres, the County Judge of the County of Jefferson ordered an election to be held to determine whether the area should be incorporated as a town under the laws of the State; that thereafter an election was held within said area on December 12, 1959 resulting in a vote for incorporation, and that the results were duly certified and declared by the County Judge; and on January 9, 1960 an election was held for town officers at which Martin Le Piniec was elected Mayor and the other named defendants councilmen. The petition alleged that said elected officials were asserting authority and attempting to exercise rights of City officials under the election held and that this action, therefore, was brought praying for an order declaring said incorporation invalid and enjoining the officials of the purported Town of Port Acres from in any manner attempting to exercise authority under such...