Hunt v. Atkinson

SPEER, J.

Since our decision of the case upon the original submission, and since the issuance of a writ of prohibition herein, the Legislature has passed the following curative statute:

“Section 1. That all ordinances and proceedings, and all actions, proceedings and contracts, taken or made in pursuance thereof, of any city having a population of one hundred thousand and under one hundred fifty thousand, as shown by the preceding Federal Census, which have been, heretofore, passed under and in accordance with Article 1175, Revised Statutes 1925, providing for the extension of the corporate limits of such city, are hereby ratified and confirmed, and such extensions and actions, proceedings and contracts, taken or made in pursuance thereof, shall be deemed and held valid in all respects and to the same extent as if done under Legislative authority, previously given.

“Section 2. The fact that the act of the 33rd Legislature authorizing cities of more than five thousand inhabitants to adopt and amend their own charters gave to said cities the power to fix the boundary limits of said city and 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 might be provided by the charter of said city, and the further fact that the 37th Legislature of the State of Texas at its First Called Session, Chapter 149, 1921, did enact a law providing for the amendment of the charters of certain cities of over one hundred thousand inhabitants' and under one hundred fifty thousand inhabitants by extension'of the boundary limits and annexation of additional territory lying adjacent to said city by a vote of the inhabitants of said city thereupon, and that certain cities have undertaken in good faith to amend their charters by the extension of the boundary limits of said city and the annexation of additional territory lying adjacent to said city by ordinance as provided for in the charters of said cities adopted in conformity with the provisions and requirements of Chapter 147, Acts of the Regular Session of the 33rd Legislature of the State of Texas, 1913, and that the acts, ordinances and bond issues of such cities may therefore be questioned, although made in good faith and in strict compliance with Chapter 147, Acts of the Regular Session of the 33rd Legislature of the State of Texas of 1913 and of the charter provisions of said city adopted thereunder, creates an emergency and an imperative public necessity that the rule requiring bills to be read on three several’ days be suspended, and said rule is suspended and this act shall take effect and be in force from and after the date of its passage, and it is so enacted.”

The bill was received in the department of state Marcli 11, 1929, bearing tbe approval of tbe Governor and tbe necessary certificates as to tbe votes east for it to make tbe law effective from and after tbat date. We see no reason wby tbis curative act does not operate to make valid all tbe acts of tbe city of Houston wbieb we bave heretofore beld to bave been without authority of law. This most recent act is as specific as a general law can be and undoubtedly controls tbe question. Tbe want of authority in tbe city of Houston to do tbe things it did, in tbe first place, arose out of article 1265— a legislative act — and such want of power is now fully cured, so tbat the entire proceeding for a mandamus to compel tbe ordering of an election for tbe incorporation of tbe territory of Brook Smith is now moot. Tbe record before us in tbe light of the curative' statute indisputably shows such territory is now a part of the city of Houston, and no election can be beld such as tbat sought in tbe petition of plaintiff in error.

We recommend, therefore, that tbe cause be dismissed, but that tbe plaintiffs in error recover all costs of tbe court.

CURETON, C. J. Tbe previous judgment of tbis court is set aside, and tbe suit dismissed, and costs awarded in favor of plaintiffs in error, all as recommended by tbe Commission of Appeals.