
    CITY OF HOUSTON et al. v. CITY OF MAGNOLIA PARK et al.
    (No. 539-4389.)
    (Commission of Appeals of Texas, Section B.
    Oct. 21, 1925.)
    1. Municipal corporations &wkey;>29(l) — Legislature cannot authorize home rule city to forcibly annex another home rule city.
    Legislature, either by itself or through authorization to the cities themselves, cannot authorize one city of more than 5,060 people to forcibly annex to itself an adjoining city of more than 5,000 people, in view of Const. § 5, art. 11, granting home rule to cities having more than 5,000 population.
    2. Municipal corporations <&wkey;44— Legislature cannot 'destroy right of home rule city to adopt and amend own charter.
    In view of Const. § 5, art. 11, granting right of home rule to cities of more than 5,000 population, Legislature can limit the manner of adopting and amending a charter by such home rule city, but cannot destroy that right altogether. '
    3. Municipal corporations <&wkey;29(l) —Statute authorizing cities to annex adjoining towns, not having more than 5,000-according to last federal census, void as contravening"constitutional grant of home rule.
    Acts 37th Leg. (1921) c. 101 (see Vernon’s Ann. Civ. St. Supp. 1922, arts. 773a-773d), authorizing cities of certain population to extend their boundaries and annex adjoining territory, including incorporated towns and cities which did not have more than 5,000 inhabitants “according to last United States census,” held void as contravening Const. § 5, art. 11, granting home rule to cities on their reaching a population of 5,000 people, inasmuch as such constitutional grant contemplated granting home rule to a city on its reaching a population of 5,000, and Legislature could not, by legislative enactment, provide' that population was to be determined on last census basis.
    
      4. Municipal corporations &wkey;>29(4) — Annexation of one home rule city to another ineffectual.
    One home rule city, in view of the Constitution, is of equal dignity with another, and legislative enactments could not make them otherwise, and, when plaintiff city at time of attempted annexation had more than 5,000 population, such attempted annexation was ineffectual, irrespective of its population at last census.
    Certified Questions from Court of Civil Appeals of First Supreme Judicial District.
    Suit by the City of Magnolia Park and others against the City of Houston and others. Prom an order of district court granting a temporary injunction, defendant appeals to the Court of Civil Appeals, and questions certified to the Commission of Appeals.
    Certified questions answered.
    Sewall Myer and J. H. Painter, both of Houston, for appellants.
    P. A. Collins, Xork & Neeld, and King & Battaile, all of Houston, for appellees.
   POWELD, P. J.

This cause is before the Supreme Court upon the following certificate from the honorable Court of Civil Ap-. peals of the First District:

“In the above-styled cause pending in this court, on appeal from an order of the district court of Harris county, granting appellees a. temporary injunction, we deem it advisable,'because of the public importance of the issues involved and the desirability of obtaining a final decision of the questions at an early date, to certify for your determination the questions hereinafter set out, which arise upon the following statement of the record:
“This suit is brought in the name of the city of Magnolia Park, a municipal corporation, organized as such under the general laws of this stale providing for the incorporation of cities and towns, and was brought by four of the five members of the board of aldermen of said city, who sue both in their official capacity and as individuals. The city of Houston and the may- or and' commissioners of said city are the de-' fendants in the suit. The purpose of the suit 'is to enjoin the defendants from extending the boundaries of said city so as to include the city of Magnolia Park, under authority claimed by the defendants as the result of an election held on April 13, 1925, under an ordinance of the board of commissioners of said city, to determine whether the charter of the city should be amended by extending the boundaries of the city so as to include the city of Magnolia Park and other adjacent territory. The specific relief sought by the suit was. an injunction restraining the city of Houston from performing or committing the following acts:
“‘(a) Prom entering or causing to be entered upon the records of the city of Houston an order declaring the aforesaid amendment relating to the extension of the boundaries of the city of Houston aforesaid, which boundaries include the city of Magnolia Park as aforesaid, adopted.
“ ‘ (b) Prom extending the boundaries of the city of Houston as provided in said amendment so as to include the city of Magnolia Park.
“‘(c) Prom defining the boundaries of the city of Houston so as to include within said boundaries the territory comprising plaintiff city of Magnolia Park.
“ ‘(d) Prom assuming control and authority and exercising jurisdiction and dominion as a municipal corporation over the territory comprising the city of Magnolia Park, as it will if said amendment is put into force and effect.
“‘(e) Prom ousting from office or otherwise interfering with or molesting the duly elected, qualified, and acting officers of the city of Magnolia Park in the exercise of their official duties.
“ ‘(f) Prom taking possession of the public records, of the said city of Magnolia Park.
“ ‘(g) Prom taking possession of and converting to its own use the property, both real, personal, and mixed, owned and possessed by the city of Magnolia Park.
“‘(h) Prom taking any steps or doing any act, the effect of which will be to abolish and destroy the city of Magnolia Park as a municipal corporation and depriving it of its corporate rights and privileges.’
“The grounds upon which the right to the injunction is claimed are that the 20 days’ notice of the intention of the board of commissioners to pass the ordinance submitting the proposed amendment of the city charter to a vote of the electors of the city was not given as required by article 1096b of the statutes of this state (Vernon’s Sayles’ Ann. Civ. St. 1914), and therefore said ordinance and the election held thereunder are void; and that the act of the Legislature upon which the right of the city of Houston by a vote of the electors of that city to extend its boundaries so as to include the municipality of Magnolia Park depends (Acts 37th Leg. c. 101 [articles 773a to 773d, Vernon’s Ann. Civ. St. Supp. 1922]) is unconstitutional and void for the following reasons:
“ ‘First. The act, though general in form, is a special and local law.
“ ‘Second. It was passed at the first called session of said Legislature, and is not a subject specified in the Governor’s proclamation convening said Legislature, as a subject to be legislated upon, nor is it contained as a subject of legislation in any subsequent message of the Governor to said called session of the Legislature.
“ ‘Third. By section 5 of article 11 of the Constitution, known as the Home Rule Amendment, cities of more than 5,000 population are given the constitutional right of adopting and amending their own charters, with such limitations as the Legislature may prescribe, and Magnolia Park, having a population of more than 5,000 at the time of the attempted amendment of the charter of Houston, extending its boundaries so as to include said Magnolia Park, the act of the Legislature aforesaid is. unconstitutional in its application, in that it. would authorize the city of Houston to deny and deprive the city of Magnolia Park its constitutional right under section 5, art. 11, of the Constitution, to adopt and amend its own charter.’
“The defendants answered by plea in abatement and numerous exceptions, the nature of which are not material in the decision of the questions herein certified. They also denied generally each and all of the allegations of plaintiffs’ petition, and specially denied the allegations of the petition that the Act of the Thirty-Seventh Legislature, Called Session, before mentioned, was not upon a subject included in the proclamation of the Governor convening the Legislature nor in any subsequent message of theo Governor to the Legislature at said special session, and aver that the subject of the act was duly presented to the Legislature by the Governor.
“The hearing in the court below was upon the sworn pleadings and affidavits offered by the plaintiffs.
“The notice of the intention of the board of commissioners to pass the ordinance calling the election was first published on February 20, 1924, and the ordinance was passed on March 11, 1925. Due notice of the election, which was held on April IS, 1925, was given as required by the statute, and the election resulted in a large majority in favor of the proposed amendment to the city charter. No evidence was offered to show whether or not the act of the called session of the Legislature before referred to was included in the proclamation of the Governor or in any message submitted by him to said special session of the Legislature. It was shown that the city of Magnolia Park, which had less than 5,000 inhabitants at the last United States census, now has a population exceeding 10,000.
“The city of Magnolia Park has not ¿dopted or amended its charter under the provisions of the Home Rule Amendment to our state Constitution and the Enabling Act passed thereunder by the Legislature.
“Upon this statement of the record, we respectfully certify for your decision the following questions:
“First. Is the provision for 20 days’ notice of the intention of the city commissioners to pass an ordinance calling an election to determine whether the charter of the city shall be amended so as to extend the boundaries of the city, mandatory and jurisdictional, without compliance with which the order calling the election and the election held thereunder should be held V.oid ?
“Second. Is the jurisdiction of the board of commissioners to determine the fact of notice, upon which its jurisdiction to pass an ordinance rests, final and conclusive in a proceeding of this kind?
“Third. Is the Act of the Thirty-Seventh Legislature, Special Session, c. 101, a special or local act, requiring notice of intention to apply therefor as provided in section 57, art. 3,. of the ■state Constitution ?
“Fourth. Can the courts inquire into the questions of whether such notice was given or whether the subject of the act was included in the proclamation of the Governor convening the Legislature or in a message submitted to it?
“Fifth. Is the act mentioned void as to Magnolia Park because in contravention of section 5, art. 11, of the Constitution of this state?
“Justice Graves disagrees with the majority of the court upon the question of the advisability of certifying any of the questions above propounded, and is of opinion that .the judgment of the trial court should be affirmed, and desires that his refusal to join in the action of the mar jority certifying these questions be embodied in this certificate, which is accordingly done.”

In the view we take of the correct answer to the fifth question, we deem it unnecessary to answer the others. Therefore we refrain from doing so. Assuming, for the purposes of this opinion only, that all other questions could be answered favorably to the city of Houston, we are still convinced that the annexation of Magnolia Park was unlawful because in contravention of section 5, art. 11, of our state Constitution.

This ease is not one involving the authority of a- home rule city to extend its boundaries by taking in certain lands or the homes of individuals. No question of that kind is involved here. We are confronted at this time with the authority of one home rule city to annex another city of the same dignity. It seems to be an entirely new question in the appellate courts of this state.

In 1903, our Constitution provided that cities in Texas could be chartered as follows: Those of 10,000 population or less “alone by general law” (Const, art. 11, § 4); those of more than 10,000 population “by special act of the Legislature” (Const, art. 11, § 5).

In 1909, these constitutional provisions were amended in one respect only; The population requirement was reduced from 10,-000 to 5,000 in each instance. And, at the present time, cities of 5,000 population or less may be chartered alone by general law. But on November 5, 1912, section 5 of article 11 of our Constitution was amended so as to read as follows:

“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 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; said cities may levy, assess and collect such taxes as may be authorized by law or by'their charters; but no tax for any purpose shall ever be lawful for any one year, which shall exceed two and one-half per cent, of the taxable property of such city, and no debt shall ever be created by any city, unless at the same time provision be made to assess and collect annually a sufficient sum to pay the interest thereon and creating a sinking fund of at least two per cent, thereon; and provided further, that no city charter shall be altered, amended or repealed of tener than every two years. (Section 5, art. 11, adopted election Nov. 5, 1912; proclamation Dec. 30, 1912.)”

Since the adoption of the section just quoted, the Legislature has not been authorized to charter a city of more than 5,000 people. The people had substituted the rule of the local inhabitants of the cities* for the rule by the Legislature of the state. One effort was made by the Legislature to enact a charter for a city of more than 5,000 people after the Constitution was amended as aforesaid. The city of Plainview, being governed at the time under a charter adopted by the people under the general statute, found itself face tó face with a special act of the Legislature granting it a new charter. But this act of the Legislature was held void by the 'Court of Civil Appeals at Amarillo, and its action was affirmed by this section of the Commission of Appeals. See. Vincent v. State, .235 S. W. 1084.’ Our courts have held that the people of this state have substituted the fight of local self-government in cities of more than 5,000 for the former method of control by the Legislature.

There has been very little legislation providing for the forcible annexation by one city of a contiguous city. In 1921, the Thirty-Seventh Legislature (Chapter 101) in regular session, passed an act, the first section of which reads as follows:

“Any city having a population of fifty thousand or over, as shown by the last United States 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 two thousand inhabitants.”

At the first called session of the same Legislature (Chapter 49), the aforesaid act was amended (according to the title of the new act) by adding the following:

“Section 1. Any city having a population of one hundred thousand and under one hundred and fifty thousand, as shown by the last United States 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 last United States census.” Vernon’s Ann. Civ. St. Supp. 1922, art. 773a.

We are not called upon to say whether or not the statute authorizing a city of 50,000 people to annex one of not more than 2,000, without the latter’s consent, is constitutional. Therefore we do not desire to be understood as in any way passing upon that question.

In 1903, the Legislature, by special act (Sp. Laws 1903, e. 56), forcibly annexed the city of Oak Cliff, having less than 10,000 population, to the city of Dallas, having more than 10,000 population. This was done by the Legislature granting to the city of Dallas a new charter. That action was upheld by the Court of Civil Appeals at Dallas. City of Oak Cliff v. State, 77 S. W. 24. The holding' by the Court of Civil Appeals was affirmed by the Supreme Court, Associate Justice Williams having his dissent noted. 97 Tex. 383, 79 S. W 1. The holding in that case authorized the Legislature to forcibly annex tq a city of more than 10,000 people a city of less than 10,000 people. Of course, as already shown, the requirement for 10,000 population was later changed in our Constitution to 5,000r

Under the authority of the case last referred to, it would seem that the Legislature could still authorize cities of 50,000 people to forcibly annex adjoining cities of not more than 5,000.- We do not have any such question in this case.

It seems to us there is no room for the contention that the Legislature, either itself or through authorization to the cities themselves to do so, can authorize one city of more than 5,000 people to forcibly annex an adjoining city of more than 5,000 people. This is the very question we have before us, and is the one we are to decide. In passing the statute last quoted, the Legislature showed quite clearly that it realized it could not, under section 5 of article 11 of our Constitution, authorize the forcible annexation of cities of more than 5,000 inhabitants. For that reason, the act merely authorized the annexation of cities of not more than 5,000 inhabitants. But, the question arises as to whether or not, in fixing the time when the population was to .be determined, the statute contravenes the Constitution. If the last clause of the statute under consideration had read “does not include any incorporated city or town having more than 5,000 inhabitants at the time of the proposed annexation,” an entirely different proposition would be before us. Apparently, that would not conflict with section 5 of article 11 of our Constitution. But, the act did not do so. On the contrary, it says, “according to last United States census.” Under the terms of this act, Magnolia J?ark, or any other city of more than 5,000 inhabitants, might have to wait for 10 years before enjoying the benefits of local self-government as given under the Home Rule Amendment. Not only so, but such a city would be compelled to stand by and permit itself to be forcibly annexed and its government entirely dissolved by an adjoining city at any time during the 10-year period. The Legislature did not have the power to deprive Magnolia Park, or any other such city, of its right to adopt and amend its own charter at any time after it had more than 5,000 inhabitants. Under the act, its very existence could be wiped out without its people having any voice in, much lfess entire control of, that question. The Legislature can limit the manner of adopting or amending a charter by a home rule city, but it cannot destroy that right.

The people of Texas have written into the fundamental law the provision that, where a city has more than 5,000 inhabitants, it has a right to govern itself. If section 5 of article 11 had read, “Cities having more than five thousand inhabitants aeoord- ing to the last United States census may,” etc., tlie statute under which the city of Houston is attempting to act would apparently he constitutional. But the underscored words were not inserted by the people of Texas in adopting this section. It was their desire that cities enjoy these rights at the earliest possible moment and not have to await the pleasure of the United States government in taking a census, which has been done only every 10 years. Not only is there no such wording in this section of the Constitution, but we find nothing anywhere in the Constitution which shows an intention that a city in acquiring a charter was to have its population determined by the last United States census. On the contrary, all the provisions of the Constitution and statutes in connection therewith show that cities were authorized to acquire their charter rights at any time upon 'attaining a eertáin population.

We are not called upon to say that the Legislature is without power to provide a reasonable method by which the population of a city could be determined at any given time. It probably would have such power. But we do say it cannot limit a constitutional provision by saying that a right can be exercised only at every 10-year period, when the Constitution itself says cities shall have those rights at any time they reach a certain population. The Legislature is not authorized, to limit the expressed will of the people in any such way. The act is void, since it writes into the law a provision inconsistent with the Constitution itself.

It was the purpose of the people to bestow upon the cities coming under the Home Bule Amendment “full power of local self-government.” This was the declared purpose of the Enabling Act passed in January, almost immediately after the new home rule section of the Constitution had been adopted. Furthermore, the Enabling Act provided that cities should go ahead under their old charters unti-l they were amended or had adopted new. ones. It was the intention of the citizenship of this state to give to cities the right to determine for themselves what kind of charter they should live under. Until their population exceeded 5,000, they were subject to the general law in their incorporation. After that, they could avail themselves of the Home Buie Amendment and change their charters at their pleasure.

Magnolia Park was running along as a regularly incorporated city under the general statute. In 1920, it had less than 5,000 people. Just when the city passed the 5,000 mark is not apparent. But it is conceded that,' when this attempted annexation occurred, it had a population of more than 10,-000 people. Consequently, at that time, it had a right to say for itself whether it would keep its charter as it had been, adopt a new one under the Home Buie Amendment and remain independent of the city of Houston, or adopt a charter for themselves under which théy would consent to have their city annexed to the city of Houston. The city of Houston Heights had been annexed to the city of Houston under a statute by the terms of which' the annexation was dependent upon a favorable majority vote in each city voting separately on the same day. Against such a voluntary consolidation nothing can be said. We do feel that the courts should be slow to deprive one-home rule city of its rights .in favor of another home rule city. They are supposed to be of equal dignity. At any rate, they are equal under the provisions of our Constitution. The statutes cannot make them otherwise.

When the city of Houston attempted to annex it, the city of Magnolia Park had the right to defeat the plan by showing, as it would any other fact, that it had, at that very time, more than 5,000 inhabitants. This statute has never heretofore been before the appellate courts. It was admitted by all parties in the argument that when passed in 1921 it could affect only two cities in Texas, and they were. Fort Worth and Houston.- Just why the particular populations are designated is not. apparent, nor is it clear why a city of 150,000 people should have this right of annexation and one of more population should be denied it. It is seriously .contended that the act was intended to operate as a local or special law and therefore void. But we are not passing upon that question.

We have found one authority which we think very persuasive in support of our conclusion. It is the case of Williams v. Castle-man, 112 Tex. 193, 247 S. W. 263. The opinion was by our present Supreme Court, speaking through Chief Justice Cureton. In that case, the city of Breckenridge had suddenly acquired a population of more than 8,000. This was due to an oil boom. The commissioners’ court of the county had decided it was necessary to have an additional justice of the peace in this new city. The old justice of the peace objected to the additional one on the ground that, according to the most recent United States census, Breckenridge did not show the requisite population for two such officials. The contention of his counsel, as taken from the opinion, was:

“Whenever the taking effect of any law is made to depend upon the number of population of any locality and the law itself makes no provision for the method of determination and ascertainment of the number of population of said locality, then such population is determined solely and only by the most récent United States census.”

’ That contention was overruled by the court. It was held that the commissioners’ court under the Constitution could determine for itself at any given time whether or not a precinct or any part thereof was. entitled to an additional justice of tlie peace. It was not dependent upon the United states census. We quote as follows from the opinion:

“If the commissioners’ court is restricted to population as determined by the United States census reports, available but once in 10 years, then the express provision that the county is to be divided into precincts for the convenience of the people (a power which we have seen is potential and may be acted upon at all times), is defeated by the suggested limitation of the census reports.”

In the Castleman Case, the United States census rule was held "to be an infringement upon the constitutional right of the commissioners’ court. For like reasons, we think such a rule contravenes the constitutional right of Magnolia Park to adopt or amend its own charter at any time after it has more than 5,000 inhabitants. Being in violation of the Constitution, the statute must fall.

This statute is but an indirect method of taking away from cities of more than 5,000 people their right to enjoy the privileges of the Home Rule Amendment. Such indirect methods cannot be upheld. In this connection, we quote from Chief Justice Gaines in the case of Brooke v. Dulaney, 100 Tex. 86, 93 S. W. 997, as follows:

“But when the Constitution declares that every county having a population of 8,000 shall have two clerks, the Legislature cannot, either directly or indirectly, take away the right so conferred. They cannot under the guise of fixing a mode of ascertaining the number of the population impair the mandate of the fundamental law. It follows, therefore, that, if the Legislature has the right to fix the method, that method must be such as is calculated to ascertain with some reasonable degree of approximation the true population of the county, otherwise the Constitution is infringed and the counties deprived of a right granted by it.”

In the Dulaney Case, the parties admitted that the county involved had more than 20,-000 inhabitants, and yet an effort was being made under a statute to deprive said county of two clerks when a population of only 8,-QOO was required for that purpose. The court spoke out in vigorous language against such a denial of the constitutional'rights of a county, and did not permit any such denial. So, in the case at bar, it is conceded that when the annexation was attempted, Magnolia Park had twice as many people as wtere necessary to authorize it, under the Constitution, to govern itself. No statute can fix some other day in the distant past for determining the population of a city in order to permit its forced annexation at the present time to a larger city. Under the construction contended for by the city of Houston, any city with a population within the limitation of this statute could annex a contiguous city with a population almost equal to its own. Booms sometimes come along, and in 10 years a city grows from less than 5,000 to ten or twenty times that number. Did the people of this state intend that one such city should destroy the self-government of any other of such cities? We think not. In the Constitution itself, they have provided that such a thing should not occur after a city has a population in excess of 5,000 inhabitants. The district court of Harris county correctly decided this case in favor of Magnolia Park.

We recommend that the fifth question certified be answered in the affirmative. This settles the case. Therefore we recommend that the remaining questions be left unanswered.

CURETON, C. J.

The opinion of the Commission of Appeals answering certified questions is adopted, and ordered certified to the Court of Civil Appeals. 
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