Lum v. City of Bowie

• Decision Date: 17 November 1891
• Citation: 18 S.W. 142
• Parties: LUM <I>et al.</I> v. CITY OF BOWIE <I>et al.</I>
• Court: Texas Supreme Court

18 S.W. 142

LUM et al. v. CITY OF BOWIE et al.

Supreme Court of Texas.

November 17, 1891.

Commissioners' decision. Section A. Appeal from district court, Montague county; F. E. PINER, Judge.

Suit by W. R. Lum and others against the city of Bowie and another to restrain the collection of certain taxes. Bill dismissed. Plaintiffs appeal. Reversed.

Stephens & Herbert, for appellants.

HOBBY, P. J.

This is a suit by injunction, brought by the appellants, W. R. Lum and others, against the city of Bowie, in Montague county, and the officers thereof, to restrain the collection of certain taxes alleged to have been unlawfully levied by said city on the lands of the complainants. It appears from the petition that on the 29th day of October, 1883, the town of Bowie was incorporated, under the general law, as a town of more than 200, and less than 1,000, inhabitants, the limits of said corporation being then well defined. It is further shown that in the year 1884, upon the application of 59 residents and voters of said town to the county judge of the county, an election was held therein to determine whether it should be incorporated as a city of 1,000 inhabitants or over, the application setting forth the fact that it contained such number of inhabitants, and describing the boundary lines of the city, so as to enlarge the same, and embraced territory not previously within the city limits. The election was held in 1884, returns thereof were made, and the commissioners' court of the county declared the result to be that the town of Bowie was duly incorporated as a town of 1,000 inhabitants or over, with its boundaries as fixed in the said application, thus including complainants' land. It was averred that at said election a majority of the voters of the town of Bowie voted in favor of its incorporation as a town of 1,000 inhabitants or over, and in favor of embracing complainants' land. That after the election the town assumed to be a city of the class last mentioned, and the taxes were levied, as alleged, on complainants' land, situated within the corporate limits of said city. The amount of taxes sought to be collected from each complainant, as stated, aggregated the sum of $102.49. It was averred that the city officers are endeavoring to collect said amounts of money from complainants, and are threatening to advertise and sell the lands of complainants for amount of said taxes assumed to be due to said pretended city of Bowie. Complainants prayed for writ of injunction to restrain said town of Bowie and its officers from collecting such taxes, for cost of suit, etc. The petition was excepted to on the grounds that it disclosed no equity in favor of appellants, and showed upon its face that they had an adequate legal remedy; and also because said city was exercising its functions by reason of an election held to determine whether such territory should be incorporated as a municipal corporation of 1,000 inhabitants or over, as provided by the statutes; that, as such incorporation, it assessed said land, and plaintiffs cannot, by injunction, call in question the fact whether or not it is legally exercising such functions. These exceptions were sustained, the injunction dissolved, and the cause dismissed.

The case thus made by the pleadings required the decision of two questions: Were the proceedings in October, 1884, of the citizens of the town of Bowie, without the authority of law, and void, by which it was attempted, through a vote of its electors, to incorporate said town as a city of 1,000 inhabitants or over, (it having been previously incorporated, in 1883, as a town of between 200 and 1,000 inhabitants,) and to extend at the same time its territorial limits, so as to embrace complainants' land? If so, the question then arises, is an injunction a proper remedy on the part of the complainants, whose land was sought to be added to said town, to restrain the collection of taxes levied by said corporation thereon?

The town of Bowie, having been, as we have seen, incorporated in July, 1883, under the general laws of the state, as a town of between 200 and 1,000 inhabitants, the only manner in which its charter or original incorporation could have been superseded was by a vote of its city council, as provided in article 340, Rev. St., and the further compliance with all of its requirements. That article did not authorize the incorporation of cities and towns of 1,000 inhabitants or over, by the electors of such towns, as was provided by chapter 11, tit. 17, art. 506 et seq.,¹ in the case of towns and villages having between 200 and 1,000 inhabitants. But article 340,² (Sayles' St.,) added to chapter 1 of the title relating to cities and towns, by the article of 1881, (17th Leg. 63,) made provision for the incorporation of cities and towns of the class first named, not previously incorporated, by complying with chapter 11 of the same title, applicable to towns and villages. No law, however, authorizes existing corporations to incorporate under the general law, and dissolve the former incorporation, in any other mode than, as before stated, by a compliance with the requirements of article 340, Rev. St. Largen v. State, 76 Tex. 328, 13 S. W. Rep. 161. Not having pursued this mode, the original incorporation of the town of Bowie in 1883 remained as it was, and necessarily its territorial limits existed as previously defined. Article 343, Rev. St.

Had the proceedings been in all respects regular, and authorized by law, — a full compliance with the method pointed out in article 340, supra, — and had the incorporation of the town of Bowie as a city of 1,000 inhabitants or over been valid, still its original boundaries would have remained unchanged, unless the contiguous territory was added thereto, with the consent of a majority of the qualified electors of such...