State v. Etheridge
| Decision Date | 20 September 1929 |
| Docket Number | (No. 620.) |
| Citation | 20 S.W.2d 808 |
| Parties | STATE ex rel. REA et al. v. ETHERIDGE et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Scurry County; Gordon B. McGuire, Special Judge.
Action by the State, on the relation of T. J. Rea and others, against J. B. Etheridge and others. Judgment for respondents, and relators appeal. Affirmed.
Hamner & Ponder, of Sweetwater, for appellants.
J. M. Harris and Jno. E. Sentell, both of Snyder, for appellees.
This is an action of quo warranto brought by the state of Texas, acting by and through George H. Mahon, district attorney, on the relation of T. J. Rea and other residents of the town of Hermleigh in Scurry county, against the mayor, clerk, or secretary and aldermen of said town. Where not otherwise designated, the parties will be referred to as relators and respondents. Relators' petition, in effect, concedes the validity of the incorporation of the town of Hermleigh on June 21, 1927, and challenges the validity of an attempt on November 4, 1927, of the mayor and aldermen to adopt by ordinance the provisions of title 28 of the Revised Statutes of 1925, as provided in article 961. The judgment of the trial court was for the respondents, and relators have appealed.
Relators contend that the judgment of the trial court is erroneous and should be reversed because: (1st) The town of Hermleigh, at the time it attempted to adopt the provision of title 28 aforesaid, contained less than 600 inhabitants and did not contain one or more manufacturing establishments within its bounds; (2d) that the action of the town council in attempting to adopt the provisions of said title 28 was void for the reason that it was not passed by "a two-thirds vote of the council"; (3d) that such attempt to adopt the provisions of said title was void for the reason that the attempted passage of the ordinance was done at a special, rather than a regular, meeting of the council. Other contentions made are deemed as but in aid of those just mentioned, and will not require separate discussion.
The trial court, presumably in response to proper request, filed conclusions of law and fact, among the findings being that the town of Hermleigh was incorporated as a town or village, containing more than 400 inhabitants on June 21, 1927, and that said incorporation existed on November 14, 1927, upon which latter date the council of said town met in regular session, being a recessed meeting from the regular session, which convened November 4th previously; that at said meeting there were present the mayor and all five aldermen of the town; that the ordinance to adopt the provision of title 28, Rev. St. 1925, was put to a vote of the council and three of the aldermen voted in favor of same, one against it, and one refused to vote; that a copy of the ordinance and action of the council was duly entered upon the journal of the proceedings, and a copy of same signed by the mayor and attested by the clerk under seal was duly filed in the office of the county clerk of Scurry county, the county in which said town is situated.
The court further found that on the 14th day of November, 1927, there was located in said town of Hermleigh three cotton gins engaged in ginning and handling cotton, and one newspaper plant engaged in the publishing of a newspaper and doing general job printing, including the making of telephone directories, etc.
It was further found that on the 3d day of April, 1928, there was held in said town an election to elect a city council, as the result of which there was elected and duly acting, W. R. Terry, mayor, and John Etheridge, Warren Forgason, T. W. Atchley, J. I. Chorn, and Joe Remish, aldermen, and that Henry Gleastin was the duly elected and acting clerk.
The trial court concluded that a quorum of the council being present, the statute required a two-thirds vote of only those present and voting, in order to accept the provisions of title 28, and that as only four members of the council voted on the proposition, three of them voting for the acceptance of the provisions of said title, such acceptance was in compliance with the statute. It was also concluded that on the 4th day of November, 1927, the town of Hermleigh contained more than one manufacturing establishment, as contemplated by the statute, and that the town was duly incorporated under said title 28 with the respondents as its duly acting officers.
We will first consider relators' contention that the attempted adoption of the ordinance accepting the provisions of title 28 was void for the reason that it was not passed by a two-thirds vote of the council. Article 961 provides that any incorporated city, town, or village containing 600 inhabitants or over, however legally incorporated, may adopt the provisions of said title. It is further provided that any incorporated city, town, or village of whatever population containing one or more manufacturing establishments within the corporate limits may accept the provisions of such title relating to cities and towns in lieu of any existing charter "by a two-thirds vote of the council of such city," or "town had at a regular meeting thereof, and entered upon the journal of their proceedings, and a copy of the same signed by the mayor and attested by the clerk or secretary under the corporate seal, filed and recorded in the office of the county clerk in which such city, town or village is situated." Rev. St. 1925, art. 1145, applicable to the town of Hermleigh at the time this action was attempted to be taken, provides that the mayor and three aldermen shall constitute a quorum for the transaction of business including the enactment of ordinances. The question presented for decision is whether, with the mayor and all five aldermen present at a meeting, a proposition to adopt an ordinance is voted for by three members and voted against by one, with one other member and the mayor not voting, such action constitutes a legal adoption of the ordinance by a two-thirds vote of the council. We are of the opinion that the conclusion of the trial court in this respect should be sustained. There was a legal quorum present. "While there is contrary authority, it has generally been held that the number of lawful votes actually cast decides the question, and that if a quorum is present an election or measure is determined by the majority of votes actually cast, although an equal or even a greater number refuse or fail to vote." 43 C. J. 510, § 582. We believe the above statement from the text of Corpus Juris is a correct declaration of the rule applicable to the question presented here. A good discussion of the reasons for the rule will be found in Rushville Gas Co. v. City of Rushville, 121 Ind. 206, 23 N. E. 72, 6 L. R. A. 315, 16 Am. St. Rep. 388. If a legal quorum be present, the council has power to act. It can only act by yea and nay votes. If two-thirds of the votes cast are for adoption of the ordinance, the requirement of the statute is met.
We do not feel justified in disturbing the finding of the trial court that the passage of the ordinance was...
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