State v. Troell

• Decision Date: 11 December 1918
• Docket Number: (No. 6101.)
• Citation: 207 S.W. 610
• Parties: STATE ex rel. MILLER et al. v. TROELL et al.
• Court: Texas Court of Appeals

207 S.W. 610

STATE ex rel. MILLER et al. v. TROELL et al.

(No. 6101.)

Court of Civil Appeals of Texas. San Antonio.

December 11, 1918.

Rehearing Denied January 15, 1919.

Appeal from District Court, Atascosa County; Covey C. Thomas, Judge.

Suit in nature of quo warranto by the State, on relation of J. D. Miller and others, against Charles T. Troell and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

T. P. Morris, of Floresville, W. W. Walling, of San Antonio, and J. D. Dodson, of Laredo, for appellants.

Dibrell & Mosheim, of Seguin, and F. H. Burmeister, of Jourdanton, for appellees.

SWEARINGEN, J.

This is a suit in the nature of a quo warranto by the state of Texas, upon the relation of residents and property owners within the territory embraced in the town of Pleasanton, to test the legal existence of Pleasanton as a municipal corporation. The cause was tried by the court without a jury. The judgment was in favor of the defendants in the trial court, holding that Pleasanton was legally incorporated.

The issues made by the pleadings and testimony may be fairly stated as follows: Based upon the petition of proper signers in compliance with statutory requirements, the county judge of Atascosa county, upon proof, found that there was the required population and ordered an election to determine the question of incorporation. An order was made May 30, 1916, and designated June 10, 1916, as the date of the election. The officer was selected for holding the election and notice published. The election was not held on June 10, 1916, because temporarily enjoined by the district court. The temporary injunction was dissolved November 24, 1916, after which, on the same day, the county judge signed the following document:

"Notice of an Election to be Held in the Town of Pleasanton, to Determine Whether or Not Said Town Shall be Incorporated.

"Whereas, on May 30, 1916, the Honorable Walter E. Jones, county judge of Atascosa county, Texas, pursuant to a petition by the requisite number of qualified voters, residing in the town of Pleasanton, asking for an election to determine whether or not the town of Pleasanton shall be incorporated as a town or village, issued his proclamation for said election to be held in the town of Pleasanton in the southwest room of the old courthouse building on the first floor, on the 10th day of June, 1916;

"And whereas, notices of said election were given on the 30th day of May, 1916, by posting printed notices thereof in three public places in the town of Pleasanton, and within the territory sought to be incorporated, that an election would be held at the time and place specified in said proclamation;

"And whereas, on 9th day of June, 1916, said election was enjoined at the instance and upon the petition of W. L. Payne, W. L. Baird, F. L. Baird, Herschel Cast and E. R. Breaker, filed in the district court of Atascosa county on June 9, 1916, by the temporary order and fiat of the Honorable F. G. Chambliss, judge of the Thirty-Sixth judicial district of Texas;

"And whereas, on the 24th day of November, 1916, in the district court of Atascosa county, the Honorable F. G. Chambliss dissolved said temporary injunction:

"Now, therefore, notice is hereby given that an election will be held on the 25th day of November, 1916, in the southwest room of the old courthouse building on first floor in the town of Pleasanton, in Atascosa county, Texas, to determine whether or not the town of Pleasanton shall be incorporated.

"Reference is here made to the petition filed in the office of the county judge of Atascosa county, Texas, on the 30th day of May, 1916, and the plat accompanying same, asking for an election in the town of Pleasanton on the 10th day of June, 1916, to determine whether said town shall be incorporated.

"Every male person who has attained the age of 21 years and who has resided within the limits of the proposed town of Pleasanton for six months, next preceding this election, and who is a qualified elector under the laws of the state of Texas, shall be entitled to vote at said election.

"Said election was ordered by the county judge of Atascosa county, by order made on the 30th day of May, 1916, and this notice is given in pursuance of said order.

"Dated this November 24, 1916.

                "H. F. Smith
                    "Presiding Officer
                                     "Walter E. Jones
                    "County Judge, Atascosa County, Texas."
                

Notice of the above was given by posting same on November 24th. The election was held the following day, November 25th. In addition to the foregoing, the undisputed testimony shows that the qualified voters in the territory had actual notice of the election in time to vote, and that 102 of the 115 qualified voters participated in the election by casting their ballots in favor of the incorporation. The promoters of the incorporation of Pleasanton desired to hold the election prior to an election to incorporate North Pleasanton, as a portion of the territory was embraced in the petitions for both...