Vincent v. State

• Citation: 235 S.W. 1084
• Decision Date: 14 December 1921
• Docket Number: (No. 261-3478.)
• Parties: VINCENT et al. v. STATE ex rel. WAYLAND et al.
• Court: Texas Supreme Court

235 S.W. 1084

VINCENT et al. v. STATE ex rel. WAYLAND et al.

(No. 261-3478.)

Commission of Appeals of Texas, Section B.

December 14, 1921.

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

Suit by the State, on the relation of J. H. Wayland and others, against Charles Vincent and others. From a judgment of the Court of Civil Appeals (217 S. W. 402), reversing a judgment for defendants and remanding the case, defendants bring error. Affirmed.

Kinder & Russell and Williams & Martin, all of Plainview, for plaintiffs in error.

L. D. Griffin, Co. Atty., W. W. Kirk, and Geo. L. Mayfield, all of Plainview, for defendants in error.

HAMILTON, J.

This is a suit in the nature of quo warranto brought by the state of Texas, acting by and through L. D. Griffin, county attorney of Hale county, Tex., filed by him on the relation of J. H. Wayland et al., complaining of Charles Vincent et al., all residents of Hale county.

The petition alleges that on the 12th day of February, 1907, an election was held, according to law, for the purpose of incorporating the city of Plainview; that on the 28th day of February, 1917, the county judge of Hale county, by proper order, declared the result of the election to be in favor of incorporating the city, setting out the boundaries of the city so alleged to have been incorporated; that the incorporation had never been abolished or annulled, but is now valid and subsisting; that under that incorporation elections were legally held, and officers elected and qualified, and a regular municipal government begun and continuously conducted under that incorporation up to and until a pretended city government was undertaken by some of the defendants and others under cover of law, under and by virtue of a special act of the Legislature of the state of Texas; that in March, 1917 (Loc. & Sp. Acts 35th Leg. c. 142), the Legislature of Texas passed a special act entitled, "An act to incorporate the city of Plainview, Hale county, Texas, and to grant it a charter to define its powers and describe its territorial limits, duties, and liabilities, repealing all laws or parts of laws in conflict therewith, and declaring an emergency;" that the boundaries of the city were established by the act within which it is provided the city shall constitute a body politic and corporate, to be known by the name and designation of the "city of Plainview," with all the rights, powers; privileges, immunities, and duties therein granted and defined, setting out the boundaries of the city as given by the special act, and alleging that the boundaries thereof, as so provided, included territory in addition to that included in the original incorporation of the city, defining the powers of the city council and other officers, including mayor, aldermen, tax assessor and collector, city treasurer, secretary, marshal, superintendent of waterworks, etc.; providing the qualifications of officers and employees of the city so constituted, and prescribing and giving it certain taxing powers named in the act, prescribing for a board of equalization and the right to pass ordinances, defining its police powers, streets, and public grounds, prescribing fire regulations, sanitation, and general powers; that the emergency clause recites that the city of Plainview is in need of the benefit of this act, the present law covering said city being inadequate; and further alleging that the relators were respectively and individually owners, and owned, at the time of the passage and approval of said special act, lying wholly without the limits of said corporation first herein mentioned, and between the boundaries thereof and the boundaries or limits of the city as prescribed by the special act, real estate which is described in the petition; that the pretended officers have levied taxes on relators' property so situated, and are threatening to collect those taxes and are threatening to seize and sell such property for delinquent taxes under and by virtue of the provisions of the special act.

The petition attacks the special act, alleging it to be null and void, alleging it to be in violation of section 56 of article 3 of the Constitution of Texas, prohibiting the Legislature from incorporating such towns as Plainview was at the time of the passage of the act, and that the special act was in direct conflict with and contravention of section 5, art. 11, of the Constitution of Texas, which confers upon the qualified voters of such cities as Plainview was, at the time of the passage of the act, the authority of a majority of its citizens to incorporate for municipal purposes and to adopt a charter; that it was in conflict with articles 1077 and 1078 of the Revised Civil Statutes of the state of Texas, in that it attempts to abolish the incorporation by the qualified voters of the city of Plainview permitted and prescribed by those articles, thereby depriving the qualified voters of their legal right to abolish the corporation by the methods prescribed therein; and that the act is in conflict with articles 1096a and 1096b of Vernon's Sayles' Civil Statutes of the state of Texas, because it deprives the qualified voters, residing in the territory set out in the special act, of the right to incorporate for municipal purposes and to adopt a charter by the method prescribed in those articles; and further alleging that the defendants are asserting the right to the respective offices provided for in the act by virtue of a pretended election covering the territory, included in the boundaries defined by the special act; and praying that relators have judgment decreeing the special act incorporating the city of Plainview void, and that the defendants be ousted from their respective offices, etc.

The trial court sustained a general demurrer to the petition. Plaintiffs appealed, and the Court of Civil Appeals at Amarillo reversed the judgment of the District Court and remanded the case, holding the Special Act of March, 1917, incorporating Plainview, to be unconstitutional. 217 S. W. 402. Upon application of appellees to the Supreme Court, a writ of error was granted.

Plaintiff in error's first assignment of error is that the Court of Civil Appeals erred in holding, in its opinion and judgment, that the Special Act of the Legislature of Texas approved March 29, 1917, incorporating and granting a charter to the city of Plainview, as alleged, was in conflict with and violation of section 56, art. 3, of the Constitution of Texas.

Section 56 of article 3 of the Constitution of this state, among other things, says:

"The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law * * * regulating the affairs of counties, cities, towns, * * * incorporating cities, towns or villages, or changing their charter; * * * creating offices, or prescribing the power and duties of officers, in counties, cities, or towns," etc.

Was the act incorporating the city of Plainview, regulating its affairs, creating its offices, and prescribing the powers and duties of its officers, as alleged in the petition, a local or special law of the Legislature?

A local act is an act applicable only to a particular part of the legislative jurisdiction. A special or private act is a statute operating only on particular persons or private concerns. 36 Cyc. 986, and authorities there cited. The act under consideration was applicable, in its terms, only to that particular part of the legislative jurisdiction of the Texas Legislature comprised within the boundaries defining the city of Plainview, as set out in the special act and in the petition, and affected only persons of this state in those limits. That the act was local or special cannot be denied. Altgelt v. Gutzeit, 109 Tex. 123, 201 S. W. 400; Bell County v. Hall, 105 Tex. 558, 153 S. W. 121; Clark v. Finley, 93 Tex. 175, 54 S. W. 343; City of Dallas v. Western Electric Co., 83 Tex. 243, 18 S. W. 552; Ward v. Harris (Tex. Civ. App.) 209 S. W. 792; Powell v. Charco Ind. School Dist. (Tex. Civ. App.) 203 S. W. 1178; Tolle v. City of New Braunfels (Tex. Civ. App.) 154 S. W. 345.

Is it "otherwise provided in this Constitution," the Constitution of Texas, that the Legislature thereof may pass "any local or special law incorporating cities, towns, or villages, or changing their charter," or "creating offices, or prescribing the powers and duties of officers, in * * * cities and towns?" It is not.

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