Thompson v. State

Decision Date05 April 1900
Citation56 S.W. 603
PartiesTHOMPSON et al. v. STATE ex rel. DONLEY, Dist. Atty.
CourtTexas Court of Appeals

Appeal from district court, Cherokee county; Tom C. Davis, Judge.

Quo warranto by the state of Texas, on the relation of W. E. Donley, district attorney, against S. A. Thompson and others, to oust them from office in the town of Jacksonville, Cherokee county, and to have the incorporation of said town declared null and void. From a judgment in favor of plaintiff, defendants appeal. Reversed and rendered.

Willson & Walkins, for appellants. W. E. Donley, Dist. Atty., and Weeks & Fleager, for appellee.


The state of Texas, upon the relation of the district attorney in and for the Second judicial district, filed an information in the nature of a quo warranto against the appellants to oust them from the offices of mayor, aldermen, and city marshal of the town of Jacksonville, in Cherokee county, and to have the incorporation of said town declared null and void. A trial was had before the court without a jury, and judgment of ouster was rendered, as prayed for.

The town of Jacksonville was incorporated by a special act of the 13th legislature, passed May 7, 1873, with one square mile of territory. This act was repealed by an act of the 26th legislature, which became a law without the approval of the governor, and went into effect on August 26, 1899,—90 days after adjournment. On August 10, 1899, 82 residents of the town, who would be qualified voters in the proposed corporation, filed an application in the office of the county judge of Cherokee county for an incorporation of the town under the general law. Said application was accompanied by a map of the proposed town, and defined its boundaries as 2,500 varas square, with the railroad depot in the center, containing 1,107 acres. The applicants represented that more than 1,000 and less than 10,000 inhabitants were contained within the boundaries defined. The county judge did not hear any formal proof as to the number of inhabitants within said boundaries, but acting alone upon the representations made in the application, and his own knowledge that they were true, on August 11, 1899, ordered an election to be held on Tuesday, August 29, 1899, to decide whether or not said town should incorporate as the town of Jacksonville, within the boundaries set out in the application and the order of the county judge. Said order was duly entered in the minutes of the commissioners' court. It recited that satisfactory proof had been made to the court that the boundaries defined therein contained more than 1,000 inhabitants, and was in all respects in due form. The election was regularly held on August 29, 1899, and resulted in 194 votes in favor of the incorporation of said town, and 9 against it. The result of the election was duly ascertained, and an order was made declaring the town to be incorporated as provided by law. The appellants were afterwards, on September 20, 1899, elected to the several offices claimed by them, at an election in all respects regular, if the incorporation of the town was valid, and have qualified as such officers. About 400 acres of the land included within the defined boundaries were used as agricultural lands, but were suitable for town purposes. The town is a growing town, and an excessive amount of vacant territory was not incorporated.

The court below held that the incorporation was void because the county judge did not hear proof as to the requisite number of inhabitants. Other questions raised were decided in favor of the appellants. Article 580 of the Revised Statutes makes it the duty of the county judge to order the election when an application has been made in conformity with article 581, "if satisfactory proof is made that the town or village contains the requisite number of inhabitants." Jacksonville had been an incorporated town since the year 1873. The county judge had been a resident thereof, and was well acquainted with its area and population, and knew that it contained more than 1,000 inhabitants. The signers of the application were known to him to be reputable citizens of the town, and they stated in the application that the town contained more than 1,000 inhabitants. He testified that he made the order upon his own knowledge as to the number of inhabitants in the town, and within the boundaries set out in the application, and on the representations of the signers thereof made therein as to the number. The method by which the proof shall be made is not prescribed by the statute. An extrajudicial investigation is intended by the statute, and, as such, it is not confined to the swearing and hearing of witnesses. It is left to the discretion of the county judge, and he has the power to adopt any method by which the facts could be ascertained. 1 Sayles, Civ. St. arts. 385, 581; Porter v. State, 78 Tex. 594, 14 S. W. 794; Graham v. City of Greenville, 67 Tex. 62, 2 S. W. 742. The representations contained in the application as to the number of inhabitants must be regarded as in the nature of proof, and not as a mere averment or allegation to be proved. This, aided by the personal knowledge of the county judge as to the truth of the fact represented, was a sufficient compliance with the statute. We also think that...

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25 cases
  • Wolf v. Young, 12837
    • United States
    • Texas Court of Appeals
    • March 23, 1955
    ...100 Tex. 32, 93 S.W. 426; Riggins v. Richards, Tex.Civ.App., 79 S.W. 84; Word v. Schow, 29 Tex.Civ.App. 120, 68 S.W. 192; Thompson v. State, Tex.Civ.App., 56 S.W. 603; Scarbrough v. Eubank, 93 Tex. 106, 53 S.W. 573; Ewing v. State ex rel. Pollard, 81 Tex. 172, 16 S.W. 872; State v. Goowin, ......
  • Williams v. Castleman
    • United States
    • Texas Supreme Court
    • December 13, 1922
    ...Ewing v. State, 81 Tex. 172, 178, 16 S. W. 872; Scarbrough v. Eubanks, 93 Tex. 106, 53 S. W. 573, 574; Thompson et al. v. State ex rel. Donley, 23 Tex. Civ. App. 370, 56 S. W. 603; Parker v. Harris County Drainage District (Tex. Civ. App.) 148 S. W. 358, 360; McCormick v. Jester, 53 Tex. Ci......
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    • Texas Court of Appeals
    • February 3, 1926
    ...due assignments of error." Voight v. Mackle, 71 Tex. 78; Engineering Co. v. Turney, 203 S. W. 593, 109 Tex. 208; Thompson v. State, 56 S. W. 603, 23 Tex. Civ. App. 370; Bond v. Garrison, 127 S. W. 839, 59 Tex. Civ. App. 620; Brenton v. Peck, 87 S. W. 904, 39 Tex. Civ. App. 224; Connellee v.......
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    • May 2, 1914 considered sufficient as an exception to the judgment of the court. Temple v. Watkins Land Co., 81 S. W. 1188; Thompson v. State, 23 Tex. Civ. App. 370, 56 S. W. 603. We will therefore consider the assignments of The appellant, under the first assignment, makes the following proposition:......
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