State v. Larkin

• Decision Date: 23 December 1905
• Citation: 90 S.W. 912
• Parties: STATE ex rel. RICHARDSON et al. v. LARKIN et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 912

90 S.W. 912

STATE ex rel. RICHARDSON et al. v. LARKIN et al.^*

Court of Civil Appeals of Texas.

December 23, 1905.

Appeal from District Court, Henderson County; B. H. Gardner, Judge.

Quo warranto by the state, on the relation of M. E. Richardson and others, against Percy Larkin and others. From a judgment of dismissal, the state appeals. Affirmed.

Rehearing denied January 13, 1906.

J. A. McDonald, M. E. Richardson, Miller & Royal, and W. R. Bishop, for the State. Watkins, Green & Richardson, for appellees.

BOOKHOUT, J.

This is an information in the nature of a quo warranto, filed by Joe A. McDonald, district attorney of the Third judicial district, on the relation of M. E. Richardson, E. P. Miller, and J. W. Royall, against Percy Larkin, John W. Murchison, J. I. Richardson, G. W. Dowell, J. R. Gauntt, C. H. Hart, W. T. Eustace, Ranald McDonald, J. I. Wofford, I. J. Richardson, and A. S. Ferrell, by permission of the judge of said district. The information charges in substance: That on the 1st day of September, A. D. 1856, the town of Athens was duly incorporated by the Legislature of the state of Texas by special act (Laws 1856, p. 208, c. 304), taking effect from and after said date. And said special act provided, among other things, for the several officers and council of said incorporation, their powers and duties, and the limits of said corporation was declared to be one-half mile each way north, south, east, and west, from the center of the public square of said town. That on the 19th day of October, A. D. 1866, said town of Athens was duly incorporated by the Legislature of the state of Texas, by special act of that date (Laws 1866, p. 136, c. 82), which also provided, among other things, for the several officers and council of said corporation, and prescribed their powers and duties, and also that the limits of said corporation shall extend to the present limits of said town, or one mile square, and for the annual election of officers. That on the 15th day of February, A. D. 1881, after due notice, an election was held for the purpose of incorporating the town of Athens, under an order of the county judge of Henderson county, and on the 26th day of February, A. D. 1881, said county judge declared the result of said election to be in favor of incorporating said town, within the following territory, to wit: One mile square, of which the courthouse in Athens shall be the center.

It is further charged that none of the several incorporations have ever been abolished, annulled, or repealed, but are now valid and existing corporations. That after each of the acts of incorporation above recited, elections were duly and legally held, and officers elected and qualified, and a regular government begun and operated under said acts of incorporation, but that the offices of each of said corporations have been vacant since January, 1884, and that the town of Athens ever since said date (January, 1884) has contained more than 200 and less than 5,000 inhabitants. That the respondents, under color and form of law, and in pursuance of a certain pretended election, held May 10, 1901, for the purpose of determining whether certain territory, including the town of Athens, should be incorporated for municipal purposes, said territory being four square miles, are now purporting to act as mayor, alderman, city recorder, city attorney, city marshal, assessor, and collector and treasurer of said corporation, and are levying taxes upon the property and occupation of relators and others in said town of Athens. That the election held May 10, 1901, was held without an order of the county judge ordering same; that the petition for said election failed to allege that there were as many as 2,000 inhabitants residing within the limits of said pretended corporation; that the county judge entered no order, ordering said election, and failed to hear any proof as to the number of inhabitants residing within said territory of four square miles, and failed to decree prior to said election that said territory had as many as 2,000 inhabitants; that the territory of four square miles, embraced within said pretended corporation, consisted, and still consists, of pasture, woods, and farm land, to the extent of 75 per cent. of the entire territory; that said farm, pasture, and wood land was not intended, and was not suitable, for town or city purposes; and that said land was fraudulently embraced within the limits of said pretended corporation, for the purpose of taxation, and for no other purpose. That said pretended incorporation is void, and that said mayor, alderman, and other officers are wrongfully and unlawfully usurping and intruding themselves into said offices, and are unlawfully holding and executing the same.

Plaintiff prays that said pretended corporation be declared void. For answer, respondents filed a general denial, and, specially answering, alleged, among other things, that the incorporation of the city of Athens, on May 10, 1901, was validated by a special act of the Twenty-Seventh Legislature at its first called session in 1901, setting out said act as an exhibit to their original answer. They also allege a certain nunc pro tunc order of the county judge, ordering said election and entered July 8, 1901, setting out a copy of said order as an exhibit to their said answer.

Plaintiff, by first supplemental position, demurred generally and specially to said answer. Replying, plaintiff filed its first supplemental petition entering a general denial to said answer and specially pleading: (1) That the amendment to article 386c, Rev. St. 1895, passed by the first called session of the Twenty-Seventh Legislature, was passed without the attention of the Legislature having been called to such legislation, by a message from the Governor, and is unconstitutional. (2) That the special act pleaded by respondents, validating the incorporation of the city of Athens in 1901, was passed without notice as required by the Constitution of the state of Texas, and is void, and that there was a conspiracy, on the part of those people who favored such legislation, to suppress notice thereof and to have same enacted without the knowledge of those who opposed it. Respondents filed their first supplemental answer, demurring generally and specially to said supplemental petition. The cause came on to be heard upon the demurrers and special exceptions of both plaintiff and respondents. The court sustained all the general demurrers and special exceptions of respondents, and overruled the general demurrer and all special exceptions of the plaintiff. Plaintiff refused to amend, and said cause was dismissed. Thereupon plaintiff excepted, and perfected an appeal.

Appellant groups its first and second assignments, and contends thereunder that an amendatory act of the Legislature of the state of Texas, which in its title only refers to the article of the chapter and title to be amended, can only amend such article as to the matter embraced in the article referred to, and is unconstitutional in so far as it embraces other matter not included in the article sought to be amended and not germane thereto. This contention refers to article 397 of the Revised Statutes of 1895 and the amendment thereto, passed in 1897. Article 397 of the Revised Civil Statutes of 1895 of the state of Texas, before the amendment of 1897, read as follows: "Whenever a vacancy occurs by resignation or otherwise, in the municipal offices of any incorporated town or city in this state, so that such vacancies cannot be filled under the charter of said town or city, or under the laws of this state now in force, then, and in that event, it shall be the duty of the county judge in the county in which such city or town is situated, upon the petition of not less that ten of the principal taxpayers, citizens of said town or city, at once to order an election to fill such vacancies, giving notice of not less than ten days in the usual manner provided for such elections." Article 397 of the Revised Civil Statutes of 1895, as amended in 1897 (Laws 1897, p. 159, c. 114), reads as follows: "Whenever a vacancy occurs by resignation or otherwise, in the municipal offices of any incorporated town or city in this state, so that the vacancy cannot be filled under the charter of said town or city or under the laws of this state now in force, then and in that event, it shall be the duty of the commissioners' court of said county in which said town or city is situated, upon a petition of not less than twenty taxpayers, voters living in said city, to order an election to be held to fill such vacancy, giving notice of not less than ten days in the usual manner provided for such elections; provided, where such town or city has been chartered by special act of Legislature and such town or city contains more than two hundred and less than five thousand inhabitants and the offices of such town or city have been vacant for a period of ten years or more, such charter of said town or city, shall become void, and forfeited, and no election of officers in such town or city shall be held; but the inhabitants of such town or city may re-incorporate under the general laws of this state, relating to towns and cities in the manner as now or may hereafter be prescribed by the laws of this state." The law, as it originally stood, provided a means whereby an incorporated town or city, whose offices had become vacant and which vacancy could not be filled under its charter or the laws of the state, might again elect officers. The amendment relates to the same subject-matter, and provides that such towns and cities as contain over 200 and less than 5,000 inhabitants, and which have been incorporated under special act of the Legislature, and whose offices have been vacated for 10 years, shall not again elect officers. We think it clear that the amendment, in so far as it provides that, where such town or city is...