Citations
- 69 Tex. 55
Full opinion text
Stayton, Associate Justice.
This is'a proceeding by quo warranto, to question and have adjudicated the right of the respondents to exercise the powers of mayor, alderman and marshal of the city of Wills Point. There are two grounds on which the petition questions their right.
1. It alleges that the territory embraced within the limits of the city at the time an election was ordered and held to determine whether it should be incorporated, did not have one thousand inhabitants, and on this ground it is claimed that the city was never legally incorporated, and that therefore the respondents are not entitled to exercise the powers which would pertain to the offices severally claimed by them had the incorporation been valid.
The petition, however, in effect alleges, that the steps were taken required by chapter 11 of Revised Statutes, which by subsequents acts has been made applicable to the incorporation of cities and towns having one thousand and not more than two thousand inhabitants. (Act March 26, 1881, General Laws, 63; Act of April 6, 1881, General Laws, 116.)
In proceedings of this kind the great weight of authority sustains the proposition that an inquiry may be made into the legality of a corporation when the rights of a person, claiming to be an officer under the terms of its charter, to exercise such power as the charter proposes to give, is called in question. (People v. Carpenter, 24 New York, 86; The State ex rel. v. Parker, 25 Minnesota, 218; Shumway v. Bennett, 29 Michigan, 452; State v. Weatherby, 45 Missouri, 17.)
Such an issue, in such cases, whenever the claim is that the respondent bases his right to exercise the power on an act of incorporation claimed to be invalid, would necessarily arise; and the fact that the court in a proceeding against the officer would not have the power to enter a judgment that would bind the corporation de facto, unless it be made a party, ought not to deprive a court of power to try the issue of fact between the parties before it, where the existence of the facts on which the validity of the corporation depends, has not been submitted to and determined by some person, or tribunal whose determination is not open to revision by the judiciary.
The Legislature, however, may make the fact of incorporation or no incorporporation to depend on the action and determination of some official or tribunal, whose determination the courts will have no power to revise, and if this be done, in a proceeding by quo warranto against persons who assume to exercise powers given by the act of incorporation no inquiry can be made into-the legality of the corporation.
The law under which it is claimed that the city of Wills Point was incorporated, requires that an election shall be ordered by the county judge whenever fifty electors residing within the territory intended to have incorporated may file an application with him. (Rev. Stats., art. 507; Gen. Laws 1881, pages 61, 116.)-Before, however, the county judge is authorized to order an election, the statute requires that satisfactory proof must be made that the territory sought to be embraced within the contemplated corporation has the population prescribed for a municipal corporation of the given class. (Rev. Stats., art. 508.) This proof must be made to the county judge who is called upon to order the election, and no provision is made for the revision of his finding as to the population residing within the designated boundaries.
After an election has been ordered and held, the result is required to be returned to the county judge, who is required, if a majority of votes have been cast in favor of incorporation,