
    CITY OF WICHITA FALLS et al. v. CONTINENTAL OIL CO.
    (No. 858-4945.)
    Commission of Appeals of Texas, Section B.
    Jan. 18, 1928.
    I. Municipal corporations <®=>6,5 — Purpose of Home Buie Amendment to Constitution is to secure convenient and direct method of city government (Const, art. II, § 5).
    Purpose of Const, art. 11, § 5, commonly known as the Home Rule Amendment, providing that cities having more than 5,000 inhabitants may by a majority vote of qualified voters of said city at an election held for that purpose adopt or amend their charter subject to such iimitations as may be prescribed by Legislature, is to secure convenient and direct method of city government.
    '2. Municipal corporations <§=>65 — City governments under Home Rule Amendment, while supreme within own sphere, are subject to constitutional limitations of power (Const, art. II, § 5).
    Power conferred upon cities under the Home Rule Amendment (Const, art. 11, § 5) is akin to powers conferred upon the legislative branch of state government, and while city governments are supreme within their own sphere they are subject at all times to constitutional limitations of power protecting persons or property.
    3. Municipal corporations <§=>589 — Validity of ordinance is not affected by fact that city operates under home rule charter instead of legislative charter.
    Question of validity of an ordinance enacted which is claimed to contravene provisions of Constitution is not affected by the fact that the charter of the city enacting the ordinance is one adopted under the Home Rule Amendment (Const, art. 11, § 5), and not one granted by the state Legislature; city being equally bound to observe constitutional limitations in either case.
    Certified Questions from Court of Civil Appeals of Seventh Supreme Judicial District.
    Action by the City of Wichita Ealls and others against the Continental Oil Company. Judgment for defendant, and plaintiffs appeal to the Court of Civil Appeals for the Seventh District, which certified questions to the Commission of Appeals.
    Questions answered.
    W. E. George and Weeks, Morrow, Francis & Hankerson, all of Wichita Falls, for appellants.
    W. B. Hamilton, of Dallas, and G. R. Pate and W. E. Whightsel, both of Wichita Falls, for appellee.
   SPEER, J.

This case is before us upon a certified question from the Chief Justice of the Court of Civil Appeals for the Seventh District, as follows:

“This is a suit by the city of Wichita Falls, Tex., and certain citizens of that city, as plaintiffs, against the Continental Oil Company of Texas, as defendant, to enjoin the defendant from erecting and maintaining an oil and gas filling station on certain lots in said city. A temporary writ of injunction was granted. The case was thereafter tried on its merits, and judgment was rendered by the' trial court dissolving a temporary injunction, denying the plaintiffs the relief prayed for, and also enjoining the plaintiffs from interfering in any manner with the defendant in the erection and operation of such service, oil, and gas station.

“Plaintiffs plead two grounds upon which they assort their right to relief, the first ground being the only one which involved the question we certify to your honors.

“The city of Wichita Falls, Tex., is a municipal corporation, established by a charter adopted and approved by the voters of the city of Wichita Falls, Tex., under the ‘Home Rule’ Amendment, section 5, art. 11, of the Constitution of Texas.

“The following ordinance was thereafter duly enacted by the board of aldermen of said city, to wit: (A full copy of the ordinance referred to is then set out.)

“Thereafter the defendant Oil Company made application for a permit to erect an oil and gas service station and to conduct a retail oil and gas business on the above-named premises, which permit, after due hearing, was by the board of aldermen denied. The defendant thereupon appealed from such decision to the board of appeals or review created by said ordinance, and, on hearing, said board of appeals again denied such permit to defendant. The defendant then proceeded with the erection of its oil and gas filling station, and the plaintiffs filed this suit to restrain it from the erection and operation of same.

“The ‘Home Rule’ Amendment provides that a municipal corporation has the power and authority to pass any ordinance which is not inconsistent with the Constitution or with the general laws enacted by the Legislature.

“The ease of Spann v. City of Dallas, 235 S. W. 513, holds that an ordinance passed by the municipal corporation of Dallas, acting under a charter granted it by the Legislature of Texas, was void because not in harmony with the Bill of Rights of our state Constitution. The charter here in question is one that was adopted by the voters of the city of Wichita Falls, by authority of the said ‘Home Rule’ Amendment.

“In view of the different origins of the charter considered in the Spann Case, and of the charter in the case at bar, we certify to your honors the following questions:

“First. Is the holding of your honorable court in the Spann Case applicable to an ordinance passed by a municipal corporation created under and by virtue of the ‘Home Rule’ Amendment?

“Second. If not, then is the ordinance in question, in this case, void, because inconsistent with the Bill of Rights in our state Constitution?”

Section 5, art. 11, of the state Constitution, commonly known as the Home Rule Amendment, provides:

“Cities having more than five thousand (5,-000) 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 provided 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. * ⅜ * ”

The convenience and directness of this method of city government is obvious, and these considerations constitute the primary purpose of the amendment. But it is perfectly apparent that cities thus adopting or amending their charters under this provision are yet doing «o in direct obedience to the mandates of the Constitution, and are as much subject to its provisions as are cities chartered under the general law or otherwise. Indeed, the amendment itself declares that no charter or any ordinance passed under said charter in pursuance of such amendment “shall contain any provision inconsistent with the Constitution of the state.” Without such express provision doubtless the same effect would have followed, but the matter is made doubly sure by this express limitation of power. The powers thus conferred upon home rule cities is akin to the powers conferred upon the legislative branch of the state government. They are supreme within their own sphere, but subject at all times to all constitutional limitations of power in protection of persons and property. Such a city would have no more power to transcend the limitations of the fundamental law than would the Legislature.

The case of Spann v. City of Dallas, 111 Tex. 350, 235 S. W. 513, 19 A. L. R. 1387, referred to in the certificate, passed upon the validity of an ordinance of the city of Dallas acting under a charter granted directly by the Legislature of the state. But the decision Was not made to turn upon any consideration of that point, and would have been the same had the city of Dallas been chartered and operating under the express authority of the Home Rule Amendment. The matter of origin of the charter in any case is of no importance in determining the city’s power to pass an ordinance in violation of a constitutional limitation. So that the first question certified should be answered in the affirmative, and this makes it unnecessary to answer the second question.

Of course, we are not deciding that the decision in the Spann Case is decisive of the validity of the ordinance in the present case, for no such question is before us. The ordinance involved in the Spann Case and that involved in the present case and the facts of the two cases are different in very substantial respects, and these differences will enter into the final consideration of the validity of the ordinance in the present case. The effect of our answer merely is that the decision of the question of the validity of the ordinance is not to be affected by the origin of the charter under the Home Rule Amendment.

OURETON, C. J.

Opinion of the Commission of Appeals answering certified questions adopted and ordered certified to the Court of Civil Appeals. 
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