Richardson v. State

• Decision Date: 13 December 1946
• Docket Number: No. 13772.,13772.
• Citation: 199 S.W.2d 239
• Parties: RICHARDSON et al. v. STATE.
• Court: Texas Court of Appeals

199 S.W.2d 239

RICHARDSON et al. v. STATE.

No. 13772.

Court of Civil Appeals of Texas. Dallas.

December 13, 1946.

Rehearing Denied January 17, 1947.

Dissenting Opinion January 21, 1947.

Appeal from District Court, Dallas County; Wm. M. Cramer, Judge.

Suit in nature of quo warranto by the State against J. L. Richardson and others, mayor and aldermen of the city or town of Honey Springs, attacking the corporate existence of the municipality. From a judgment of ouster, respondents appeal.

Affirmed.

Shirley W. Peters, of Dallas, for appellants.

H. Pat Edwards and Warren S. Cook, Civil Dist. Attys., J. E. McLemore, Jr., and Franklin E. Spafford, all of Dallas, for appellee.

H. P. Kucera, City Atty., of Dallas, amicus curiæ.

YOUNG, Justice.

This suit was in nature of quo warranto by the State through Dean Gauldin, Dallas County District Attorney, against respondent, questioning its corporate existence ab initio, alleging illegality of incorporation in several particulars; and, alternatively, that the City of Honey Springs had been abolished pursuant to statutory election held February 20, 1946. Upon trial to a jury and verdict, judgment of ouster was rendered against the municipality and officers, terminating its corporate franchise for all purposes.

The specific charges of corporate invalidity on which the instant proceedings were based are first suggested in the following issues of the court's charge: The jury answering "There was not" to issue 1 inquiring if "there was land included within the field notes describing the area within said town which was not reasonably suited for town purposes, on or about May 1937, allowing for reasonable growth of such town"; answering "It was intended" to issue 3 of whether "at the time the petition for incorporation was filed with the County Judge there was land included in the field notes that was not intended to be used for strictly town purposes, allowing for a reasonable growth of such town"; and issue 4, "that the Town of Honey Springs, as the same is described in the field notes of the outside boundary lines of said town, embraces and contains more than twelve hundred eighty acres of land"; issue 5, that at time of incorporation of Honey Springs there were not less than 401 inhabitants in the area included in the field notes and plat of the land covering said town.

Respondent claims municipal existence pursuant to petition and order of the county judge on May 3, 1937, whereby the town of Honey Springs was declared incorporated under provisions of Art. 1133, Vernon's Ann.Civ.St., that "When a town or village contains more than two hundred (200) and less than ten thousand (10,000) inhabitants, it may be incorporated as a town or village" etc. See footnote.^* On September 10, 1945, respondent's town council, by unanimous vote, enacted an ordinance adopting and accepting the provisions of Art. 961, R.S., Title 28, ch. 1, relating to cities and towns containing 600 inhabitants or over, its population being fixed in the ordinance at approximately 1,512; and in this connection the fact appears generally admitted that Honey Springs, at time of original incorporation (1937), contained less than 2,000 inhabitants. Art. 971, R.S., same chapter and title, reads in part: "No city or town in this State shall be hereafter incorporated under the provisions of the general charter for cities and towns contained in this title with a superficial area of more than two square miles, when such town or city has less than two thousand inhabitants"; and the jury has found under issue 4 that in May 1937, the field notes describing area covered in corporate limits included more than two square miles. Likewise, it appears generally conceded, in briefs and argument of the parties on submission, that any attempted incorporation in violation of Art. 971 (more than two square miles of territory and less than 2,000 inhabitants) was illegal and void. Spurlin v. State, 15 Tex.Civ.App. 266, 115 S.W. 128; Merritt v. State, 42 Tex.Civ.App. 495, 94 S.W. 372; Wilson v. Carter, Tex.Civ.App., 161 S.W. 411. Relator's action for ouster would thus appear conclusively established, unless nullified by respondent's affirmatively pled defenses, now presented as its points of appeal, viz.: Error of the court in overruling and not sustaining its motion for instructed verdict and non obstante veredicto, (1) thereby erroneously holding, in effect, that the judgment in cause No. 284-A did not constitute a bar to the instant litigation; (2) that the provisions of Chapter 381, Acts 48th Legislature, Art. 1134c, V.A.S. was not a bar to the suit in quo warranto; (3) that appellants' ordinance of 1945 accepting the provisions of Title 28, relating to cities and towns, did not render moot the question of excess area (more than 2 sq. mi.) of Honey Springs as originally incorporated; (4) and in holding impliedly that an election called and held under Art. 1261 to abolish this municipal corporation organized and operating under provisions of Art. 961, was valid.

As bearing on above point 1, the proceedings pled in bar of quo warranto, styled Cause 284-A, should be briefly outlined. On May 22, 1946, J. J. Owsley, a resident of Dallas County, and property owner in the Honey Springs district, filed an injunction suit against respondent city, its mayor and five aldermen, for relief both temporary and permanent, alleging the 1937 incorporation of Honey Springs, its change-over by ordinance of September 1945 to status of cities and towns, pursuant to Art. 961; the election and vote of February 1946 to abolish the municipality, and order of the County Judge of Dallas County to such effect; that notwithstanding aforesaid election result, the town of Honey Springs, through its officers, was still attempting to enforce building regulations, threatening petitioner with prosecution for alleged violation thereof as to a building he was constructing; that it was likewise preparing to levy and collect taxes against his property and create a lien thereon, all of which was illegal and without authority of law; praying for above equitable relief along with actual damages.

On the same day and simultaneously, defendant city filed answer reiterating its corporate history inclusive of the ordinance of 1945, whereby it accepted the provisions of Art. 961, Title 28; describing the 1946 election to dissolve; alleging, in effect, that the consequent judgment of dissolution was invalid, in that the requirements of Art. 1261 were erroneously employed instead of Art. 1241; the latter statute constituting the proper method for undertaking to abolish said town; praying that petitioner Owsley take nothing by his suit and, further, "that the court enter declaratory judgment determining the status of defendants by virtue of the facts hereinabove alleged * * *." Further, on that day the parties, plaintiff and defendants, entered into an agreed statement of facts, captioned "Be it Remembered that upon a trial of above entitled and numbered cause before Judge Ralph Gillen, in the 14th District Court, on the 22nd day of May, 1946, the following proceedings were had:" Then appear, by way of stipulation, the material fact allegations contained in above-mentioned pleadings of Owsley and defendant city.

On May 29, 1946, the instant petition for quo warranto was filed in 101st District Court, Dallas County, pursuant to permission and order granted by Hon. Wm. M. Cramer, Presiding Judge; attorneys for the State immediately filing, in Cause 284-A, a paper styled "Its Intervention", requesting a stay of all proceedings in the latter court for the reason that "there is now pending in the 101st District Court of Dallas County, Texas, an Information and Petition in Quo Warranto, instituted and filed by your Relator wherein all of the matters in the suit pending in this court are involved, and will be tested."

The foregoing agreed sets of facts in Cause 248-A was filed in 14th District Court June 20, and judgment rendered June 22, 1946, not mentioning the State of Texas by name but reciting that "The plea in abatement filed herein" was without merit and accordingly overruled; further stating, in effect, that the law and facts were with defendant city and that plaintiff Owsley take nothing by reason of his suit, to which action he excepted and gave notice of appeal.

Above judgment is here pled in bar of the instant suit for ouster; in which connection it will be observed that Cause 284-A solely involves validity of the February 1946 election to abolish an order of the County Judge therein; whereas, in this quo warranto proceeding, aforesaid election and order of dissolution was pled only in the alternative. The State's main count charged that the original incorporation of Honey Springs was in violation of law and void, because (1) containing more than 2 sq. mi. with less than 2,000 inhabitants; (2) containing less than 400 inhabitants at time of purported incorporation; (3) the act of incorporation was not in good faith, but to forestall annexation to the City of Dallas; it not functioning for many years after 1937 as prescribed by the statutes of Texas; not holding regular elections, its officials holding no regular meetings, keeping no regular books and records, making no attempt to levy and collect taxes; (4) that included as the major part of its area was farm land not intended to be used for town purposes.

The judgment under review is in conformity with appellee's main count attacking validity of the 1937 act of incorporation and whether appellee's alternative plea (corporate dissolution following the February 1946 election) was thereby impliedly disallowed, we do not pause to determine. Crain v. National Life Ins. Co., 56 Tex.Civ.App. 406, 120 S.W. 1098, (writ ref.); Rackley v. Fowlkes, 89 Tex. 613, 36 S.W. 77. At least, such second count was not a necessary incident to aforesaid adjudication of ouster.

From what has been heretofore stated, it is obvious...