Sansom v. Mercer

• Decision Date: 14 June 1887
• Citation: 5 S.W. 62
• Parties: SANSOM, Mayor, etc., v. MERCER and others.
• Court: Texas Supreme Court

5 S.W. 62

SANSOM, Mayor, etc., v. MERCER and others.

Supreme Court of Texas.

June 14, 1887.

Appeal from district court, Johnson county.

Mandamus to compel the mayor of the city of Alvarado, Johnson county, to order an election under the act of April 14, 1883, to determine the question of the withdrawal of certain territory from the municipality. The material parts of this act are as follows:

"An act to amend title 17, chapter 10, of the Revised Statutes of the state of Texas by adding thereto articles 503a and 503b.

"Section 1. Be it enacted by the legislature of the state of Texas, that title 17, chapter 10, be amended by adding thereto the following articles, to be known as articles 503a and 503b:

"Art. 503a. Whenever fifty qualified voters of any territory within the limits of any incorporated town shall sign and present a petition to the mayor of such city praying that such territory, setting the same out by metes and bounds, be declared no longer a part of such town, it shall be the duty of the mayor thereof to order an election within thirty days thereafter, to be holden at the different voting precincts of said town; and, if a majority of the legal voters of said town voting at such election, cast their votes in favor of discontinuing said territory as a part of said town, the mayor of said city shall declare such territory no longer a part of said city, and shall enter an order to that effect on the minutes or records of the city council, and from and after the date of such order said territory shall cease to be a part of said town: provided, no city or town shall thus be reduced to a less area than one square mile, or one mile in diameter around the center of the original corporate limits."

Crane & Ramsey and Andrew King, for appellant. Poindexter & Padelford, for appellee.

GAINES, J.

The territorial limits of the city of Alvarado, in Johnson county, are more than a mile in diameter. Appellees and some 80 other persons, claiming to be qualified voters of so much of the territory of the city as lies outside of a circle described from its center by a radius of the length of a half a mile, in accordance with the act of the legislature approved April 14, 1883, presented to appellant, as mayor of the corporation, a petition that so much of the corporate limits as is not embraced in such circle be declared no longer a part of such city, and that he order an election for that purpose. The mayor having refused, appellees brought this suit to compel him, and upon the final hearing the peremptory writ of mandamus was awarded, and he has appealed to this court.

It is assigned, first, that the court erred in overruling the exceptions to the petition; and it is now insisted that the act which appellant was called upon to perform involved discretion and judgment on his part, and that, therefore, the writ of mandamus does not lie to compel him. The petition for the writ alleges that 81 persons signed the original application to the mayor to order the election, and that they were qualified voters of the territory sought to be excluded. It also averred that appellant, "without any legal excuse, and without giving any reasons for his action, refused and failed to order said election." It is well settled that, if the duty an officer is called upon to perform requires the exercise of an act of judgment on his part, his decision is not subject to be revised by a proceeding for a writ of mandamus. Ewing v. Cohen, 63 Tex. 483; Bledsoe v. International R. Co., 40 Tex. 554; Arberry v. Beavers, 6 Tex. 457; Commissioners v. Smith, 5 Tex. 471; Cullem v. Latimer, 4 Tex. 329. And it is apparent that, in a proceeding to procure an order for an election under the statute before cited, the mayor is required to determine two facts in order to justify him in making the order for the election: First, that there is a surplus of territory over the limit prescribed by the statute; and, second, that at least 50 qualified voters of that territory have signed the petition. If there be any controversy as to the existence of these facts, his function is discretionary, and he cannot be compelled to order the election. But taking the facts of the petition to be true, as the demurrer admits, the surplus territory exists, and more than the requisite number of voters have signed the application. In such a case the discretion of the mayor ceases; the act to be done is purely ministerial; his duty becomes absolute, and he can be compelled to perform it. The fact that preliminary to his action he must know that there is an excess of territory beyond the statutory requirements, and that the requisite number of voters have signed the petition, does not invest him with the discretion to refuse to order the election, when, as a matter of fact, there is no controversy as to the excess, or as to the number and qualification of the signers.

The cases relied upon by appellant do not support the contrary doctrine. We will discuss briefly the two decisions which we think most nearly in point. In Arberry v. Beavers, 6 Tex. 457, the writ was sued out for the purpose of compelling the chief justice of Cass county to count the returns from certain precincts of a special election held in order to determine the location of a county-seat. This statement is of itself sufficient to show that the case cited differs materially from this. The chief justice was charged with the duty, under the law, of passing upon the validity and regularity of the returns. Judge WHEELER, who delivered the opinion, evidently thought that this was a judicial function, and that when the officer had once canvassed the vote, and announced the result, his decision was final. But the opinion shows that he was expressing merely his individual views upon the question, and that the case was reversed and dismissed upon the ground that the petition was insufficient because it did not appear that the complainants were legal voters in the county, and it was not averred distinctly and specifically that the returns they sought to have counted were made in conformity to law. Chief Justice HEMPHILL, in an able opinion, dissented from the views of Judge WHEELER upon the main question; but acquiesced in the disposition of the cause on account of the insufficiency of the...