Turner v. City of Beaumont, 4412.

• Decision Date: 03 October 1946
• Docket Number: No. 4412.,4412.
• Citation: 197 S.W.2d 114
• Parties: TURNER et al. v. CITY OF BEAUMONT et al.
• Court: Texas Court of Appeals

197 S.W.2d 114

TURNER et al. v. CITY OF BEAUMONT et al.

No. 4412.

Court of Civil Appeals of Texas. Beaumont.

October 3, 1946.

Rehearing Denied October 23, 1946.

Appeal from District Court, Jefferson County; W. Tom Kenna, Judge.

Suit by J. M. Turner and others against the City of Beaumont and others for injunction restraining the city from exercising municipal control over property purported to have been annexed to the city and for other relief. The Stanolind Oil & Gas Company intervened as a plaintiff. From the judgment, the plaintiffs appeal.

Affirmed.

Sonfield, Votaw & Sonfield and Cecil & Keith, all of Beaumont, for appellants.

W. A. Tatum, Formerly City Atty., Harriet Rasor, Asst. City Atty., and J. B. Morris, all of Beaumont, for appellee.

COE, Chief Justice.

This is an appeal from the order of the district court of Jefferson County, Texas, 60th judicial district, refusing to grant a temporary injunction.

This suit was filed in the lower court by J. M. Turner, William H. Stewart, Charles F. Heidrick and J. J. Broussard, as plaintiffs, against the City of Beaumont, Fred Stone, Mayor of said city, Ottis Allen and Richard Carey, Jr., city commissioners, and C. J. Strack, tax assessor-collector; each of the above parties were sued only in their official capacities.

On the 23d day of April, 1946, the City of Beaumont passed an ordinance calling an election to be held on the 4th day of June, 1946, to determine whether the boundaries of said city should be extended so as to include some 21 square miles of adjacent territory. The election was held on said date, wherein only the qualified voters residing within the old city limits were permitted to vote. The residents of the territory proposed to be annexed were not permitted to vote. The election carried and the votes were canvassed by the governing body of said city, and thereafter the city declared said territory to be a part of the City of Beaumont for municipal purposes only. In passing said ordinance and in holding said election, the city followed the provisions of Section 3 of the city charter.

The plaintiffs Turner, Stewart and Heidrick alleged and it was stipulated that they were residents of the territory proposed to be annexed and owned taxable property situated therein. The plaintiff Broussard alleged, and it was stipulated, that he was a resident of the City of Beaumont as the limits of said city existed prior to said election, and owned taxable property located therein. The Stanolind Oil & Gas Company intervened in the lower court and adopted all pleadings of the original plaintiffs. In addition thereto said company pleaded that it either owned in fee or had under lease approximately 1600 acres of land within the territory reported to be annexed, and same was wholly unsuited for municipal purposes, and further alleged that the act of the city in attempting to annex said territory was arbitrary and discriminatory.

The plaintiffs and intervenor based their contention that the annexation proceedings were void upon the hypothesis that Section 3 of the Charter of the City of Beaumont is in hopeless conflict with Article 1182a, Vernon's Texas Civil Statutes, and that said charter provision was, therefore, void. The appellants prayed for injunctive relief, both temporary and permanent, restraining the city from exercising municipal control over the property purported to have been annexed in the manner above set out, and further prayed that said city and its officials be restrained and enjoined from placing their property upon the tax rolls of said city. The appellant Broussard also prayed that the city be enjoined from withdrawing any public funds from its treasury and expending the same on said territory purported to have been annexed. Appellees, defendants in the court below, filed a plea in abatement which alleged in substance that appellants were wholly without authority to maintain this suit and that it could only be maintained by the Attorney General of Texas, or some one acting in his behalf, in the nature of a quo warranto proceeding. Appellees also filed a lengthy answer wherein many pleas and special exceptions were interposed by way of defenses. The trial court sustained appellees' plea in abatement and dismissed appellants' cause of action. From this order the appellants have properly prosecuted an appeal to this court.

The appellees contend that under the "Home Rule Amendment," Section 5, Article 11 to the Constitution, Vernon's Ann.St. and under Subdivision 2 of Article 1175, V.T.C.S., Section 3 of the charter of the City of Beaumont is valid and that it was not repealed or annulled by the enactment of Article 1182a, supra. Stated in another way, appellees contend that Article 1182a has no application whatever and does not in any wise control the proceedings for the extension of the city limits of the City of Beaumont. The parties stipulated that the City of Beaumont has a population in excess of 5000 and less than 100,000.

There is no controversy with reference to the facts; the only question for our determination is whether Article 1182a, supra, had the effect of nullifying Section 3 of the charter of the City of Beaumont, providing for the extension of the city limits, thereby rendering void the annexation proceedings complained of. It is the settled law of this state that appellants are without authority to maintain this suit unless the proceedings attacked are void. In which event they may be so attacked.

Section 5, Article 11, of the Constitution, commonly known as the Home Rule Amendment, provides: "Cities having more than five thousand (5000) 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; * * *."

In the first paragraph and in subdivision 2 of Article 1175, commonly known as the "Enabling Act," we find the following provision:

"Cities adopting the charter or amendment hereunder shall have full power of local self-government, and among the other powers that may be exercised by any such city the following are hereby enumerated for greater certainty:

* * * * * *

"2. 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."

Pursuant to such constitutional amendment and statutory Enabling Act, the City of Beaumont in 1919 adopted its present charter and incorporated therein a provision for the extension of its limits, being Section 3 thereof, reading as follows: "Section 3. Extension by Referendum. The City of Beaumont shall have power to extend the boundary limits of the city and to annex additional territory at any time without the consent of the inhabitants of the territory annexed, by majority vote of the qualified voters of the City of Beaumont, voting thereon at an election at which the question may be submitted, and the City Commission, whenever in their judgment the public interest requires, may submit such question to vote of the people by ordinance duly passed describing the territory desired to be taken in, provided such question may be initiated as other questions...