Largen v. State

• Decision Date: 31 January 1890
• Citation: 13 S.W. 161
• Court: Texas Supreme Court
• Parties: LARGEN <I>et al.</I> <I>v.</I> STATE <I>ex rel.</I> ABNEY.

13 S.W. 161

LARGEN et al.v.

STATE ex rel. ABNEY.

Supreme Court of Texas.

January 31, 1890.

Appeal from district court, Lampasas county; W. A. BLACKBURN, Judge.

W. E. Adkins and J. J. Hill, for appellants. W. H. Browning and W. B. Abney, for appellees.

STAYTON, C. J.

The nature of this proceeding as well as the defenses are thus stated in brief for appellants: "This is a suit in the nature of a proceeding in quo warranto, instituted in the district court of Lampasas county, on the 4th day of November, 1889, in the name of the state of Texas, by information of the district attorney for said county, upon the relation of W. B. Abney, against the appellants, T. J. Largen et al., to oust them from their respective offices as mayor, aldermen, etc., of the city of Lampasas, on the ground that they had usurped, intruded into, and unlawfully held and were exercising said offices. The information charges that the city of Lampasas, as organized at present, has no legal existence; that in 1873 the city of Lampasas was incorporated by act of the legislature, and organized as a municipal corporation under said act; that said corporation continued its organization until 1876, when all of its officers resigned; that since 1876 there has been no corporate organization of the said city of Lampasas, but that said corporation had not been dissolved; that in 1883 the city of Lampasas was incorporated, or pretended to be incorporated, under the statutes providing for the incorporation of towns and cities of over 1,000 and less than 10,000 inhabitants, without any reference to said corporation of 1873; that the said pretended corporation of 1883 embraced the territory of that of 1873, and additional territory; that the defendants were in the exercise of corporate functions under the said pretended corporation of 1883." The defendant answered by special and general exceptions, by general denial, and specially pleaded their defenses. No action seems to have been taken on the demurrers, nor was there any question made as to the jurisdiction of the district court to hear and determine the cause. The answer alleged that the corporation created and organized under the act of the legislature incorporating the city of Lampasas had long since been dissolved; "that it was dissolved March 20, 1876; and set forth in full the facts whereby, as they claimed, it had ceased to exist. They alleged, in substance, that the corporation of the old city of Lampasas had, up to and before the 20th of March, 1876, served all the purposes for which it was created, and that the people and qualified voters residing in the said city wished to abolish it, and in effect a majority of them voted for its abolition, and in effect did abolish it. They further alleged, in substance, that the action whereby the said corporation was abolished, or attempted to be abolished, was at the time acquiesced in by all the inhabitants and qualified voters of the said old city of Lampasas, and has, for more than 13 years, been accepted and acquiesced in. That for more than 13 years the said old corporation has exercised no corporate functions. That the act creating said corporation provided no means for its dissolution. They further alleged, in substance, that the present city of Lampasas was regularly incorporated in 1883, and that for more than six years it has been a regular, acting, existing de facto corporation, exercising all the functions of a municipal government. That it had constructed many costly and important works, etc., and contracted large indebtedness, and issued bonds, which are now outstanding and unpaid, in the sum of $50,000.00. That said corporation owns much valuable property."

The substance of the averment as to the dissolution of the corporation organized under the act of 1873 was that, at the election held in the spring of 1876, the qualified voters of the city elected a city council, known to be in favor of dissolution, which in March of that year, at a regular meeting, made a full, complete, and permanent settlement of all corporate business, with a view to its dissolution, when they resigned, after having unanimously passed an ordinance declaring the several municipal offices forever thereafter vacant. Incorporation in 1883 was attempted through an...