Ellis v. State, 16427
| Decision Date | 09 October 1964 |
| Docket Number | No. 16427,16427 |
| Citation | 383 S.W.2d 635 |
| Parties | S. J. ELLIS et al., Appellants, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Jess Rickman, Terrell, for appellants.
Harold Hollingsworth and Floyd Shumpert, Kaufman, Strasburger, Price, Kelton, Miller & Martin, and Royal H. Brin, Jr., Dallas, for appellee.
By this action in quo warranto the State of Texas sought dissolution of the incorporated village of Lawrence, in Kaufman County, and the ouster of its elected officials. Based upon a jury verdict, the court rendered judgment granting the relief prayed. Being of the opinion that the jury findings are well supported by pleading and proof and legally adequate to support the judgment, we affirm it.
Incorporation of the village of Lawrence was attempted under the authority of Chapter 11, Title 28 (Articles 1133-1153a), Vernon's Ann.Civ.Statutes. Article 1133 authorizes the incorporation of a town or village when it contains more than two hundred and less than ten thousand inhabitants. Article 1134 prescribes that the application for incorporation shall be filed in the office of the county judge and shall state the boundaries of the proposed town or village, accompanied by a plat thereof, 'including therein no territory except that which is intended to be used for strictly town purposes.' Article 1136 provides inter alia: 'If satisfactory proof is made that the town or village contains the requisite number of inhabitants, the county judge shall make an order for holding an election * * * for the purpose of submitting the question to a vote of the people. * * *'
It was alleged, and the jury found, that at the time the county judge ordered the election, and at the time of the election, there were not over two hundred people within the boundaries of the village. There was ample proof to support this finding and appellants do not say otherwise. They contend under their first point of error on appeal that the lack of the requisite number of inhabitants was a mere 'irregularity' and insufficient, absent a showing that it affected the result of the election, to warrant setting the same aside.
The authorities cited by appellants in support of this point involve departures from strict statutory directions as to the manner of holding elections, and announce the general rule that such irregularities do not invalidate elections unless they can be shown to have affected the result. But here the attack on the validity of the election goes much further than to point up mere irregularities--here the assault is upon the very right of the people to hold the election. Under our decisions such a right is not inherent in the people; it is derived from the law. 21 Tex.Jur.2d, Elections, p. 282, Sec. 52. As said in Smith v. Morton Ind. School Dist., Tex.Civ.App., 85 S.W.2d 853, 854, wr. dism.:
'In our form of government elections must be held by virtue of some legal authority, and an election held without affirmative statutory authority or contrary to a material provision of the law is universally held to be a unllity.'
We know of no statutory authority for a group of two hundred or less to incorporate their community. If there were not more than two hundred people living in the village in question, there was no authority for the incorporation of the village, from which it follows that there was no right in the people to hold the election. 'The proceeding to obtain the election is clearly special in its character, and the power and authority of the county judge do not arise until the statute has been complied with in all its essential particulars.'* That being true, appellee was under no burden to show that the result of the election was affected, and appellants' first point of error is overruled.
By their second and third points of error appellants say that this proceeding constituted a collateral attack on the election order and that the court, by overruling their motions for instructed verdict and for judgment non obstante veredicto, erroneously held that the county judge acted fraudulently in ordering the election. They argue that, since no provision is made in the law for a revision, or even a review, of the implied finding of the county judge that there were more than two hundred inhabitants in the village to be incorporated, the election order was final and appellee should not have been permitted to go behind it. They cite a number of cases which seem to support this view, such as State ex rel. Goodnight v. Goodwin, 69 Tex. 55, 5 S.W. 678; Thompson v. State ex rel. Donley, 23 Tex.Civ.App. 370, 56 S.W. 603; Wilson v. Brown, Tex.Civ.App., 145 S.W. 639; Wilbern v. Cone, Tex.Civ.App., 148 S.W. 818, wr. ref.; School Board...
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...writ ref'd); Art. 6253, Vernon's Ann.Tex.Civ.Stats. (1879); 6A Lowe, Texas Practice, Remedies § 1202 (2d ed. 1973). In Ellis v. State, 383 S.W.2d 635 (Tex.Civ.App.1964, no writ), an election to incorporate a town was invalidated for the same reason that Judge Todd here urges, that there wer......
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