State v. Dunson

• Decision Date: 12 June 1888
• Citation: 9 S.W. 103
• Parties: STATE <I>ex rel.</I> <I>v.</I> DUNSON <I>et al.</I>
• Court: Texas Supreme Court

9 S.W. 103

STATE ex rel.v.

DUNSON et al.

Supreme Court of Texas.

June 12, 1888.

Appeal from district court, Nacogdoches county.

Ingraham & Ratcliff, for appellant. Tom R. Jennings, E. B. Lewis, and Geo. H. Matthews, for appellees.

STAYTON, C. J.

This is a proceeding in quo warranto against persons exercising the offices of mayor, aldermen, and marshal of the town of Nacogdoches. The town of Nacogdoches doubtless had a corporate existence while the territory within this state was under the domain of the governments of Spain and Mexico; and the petition alleges several acts of the congress of the republic, and of the legislature of this state, incorporating or amending the charter of the town, but it shows that at various times the municipal organization was not kept up by the election and qualification of the necessary municipal officers. The relator alleges that the town was reincorporated or reorganized, in the year 1859, under the general law providing for the incorporation of towns and cities, passed on January 27, 1858, (Pasch. Dig. art. 5247 et seq.;) and that since that reorganization, at intervals, the corporate organization was kept up until June, 1877. The petition further alleges that in 1887 the necessary steps, under the general law now in force, were taken to incorporate a town or city originally, under a petition signed by the requisite number of persons; and that, under the proceedings thus taken, the town was attempted to be incorporated with boundaries larger than they were under the incorporation alleged to have been completed in the year 1859. The respondents are alleged to claim the right to discharge the duties of mayor, aldermen, and marshal of the town under an election valid if the incorporation thus attempted was legal. It is claimed, however, that the corporation created in 1859 yet exists, and that the steps taken in 1887 did not give valid incorporation, by reason of the fact that a valid corporation existed when this attempt to incorporate under the general law now in force was made. It further appears that the corporate organization, completed under the act of 1858, was not kept up after the year 1882; and that, within the boundaries of the corporation as defined in the proceedings had in 1887, there were more than 1,000 and less than 2,000 inhabitants. The court sustained demurrers to the petition, and dismissed the case, holding, however, that the court had jurisdiction of the case made by the petition. We think the facts stated in the petition were sufficient to give the court jurisdiction.

The question in the case is whether the proceedings alleged to have been had in 1887 created a corporation; for, if the affirmative of this be not true, then the respondents have no right to exercise the powers they assume to exercise. The proceedings had in 1887 were doubtless under the act of January 27, 1858, which provided for the reorganization of towns and cities already incorporated, as well as for original incorporations. Pasch. Dig. arts. 5248, 5261, 5277. Under that act the same proceedings were necessary to reorganization as were required in case of original incorporation. The act of February 4, 1858, (Pasch. Dig. art. 5279,) gave to the inhabitants of a town or city reorganizing under the act of January 27, 1858, the power to increase or diminish the area of the corporation, provided that in case of a town it should not be made to embrace more than 1,280 acres. Id. arts. 5279-5281. The act of April 24, 1874, recognized the power of the inhabitants of a municipal corporation to amend its charter, and to extend its boundaries, and made provisions exempting persons residing in territory so attached from taxation to raise funds to pay pre-existing debts, unless this was consented to by two-thirds of the tax-payers embraced in the extension. Id. arts. 7798-7802. All general laws relating to the incorporation of towns and cities in force prior to the adoption of the Revised Statutes were thereby repealed, unless substantially embraced therein. Rev. St. final title, § 4. The act of January 27, 1858, and laws amendatory, made reorganization to operate as a dissolution of the former corporation, preserving, however, all property rights; and whether reorganization should be made was left to the will of the people, to be expressed at an election. The act of March 15, 1875...