Floydada Independent School Dist. v. Shipley , 1922 Tex. App. LEXIS 497 ( 1922 )

On Motion for Eehearing.

We believe our interpretation of the act as set out in the opinion is correct. On the question of de facto corporation we desire to say it is not contended that the special act is unconstitutional or that under the act the Legislature could not add the territory. The only question presented, as we conceive the matter, is that the existing corporation was wrongfully assuming jurisdiction over the territory, - in that a vote of the electors of the district was not taken as required by the act. This means, as we understand, that the territory was added in an irregular manner, such-as would not, under 'the letter of the statute, be authorized. There was a right to incorporate the territory under the law, but it was asserted there was a failure to comply with some of the requirements thereof. There can be but little question that the electors and inhabitants of the district elected officers therein, voted bonds against the territory, levied taxes, etc., performing the functions of a corporation in the territory. The vote or consent of the electors may not have been ascertained in the manner provided in the original act, yet certainly all the residents therein, including appellee, treated the territory as a part of the school district, and under appellee’s contention the electors of that district could extend the corporation so as to include the territory in question. They may not have followed the letter of the law in assuming the power, but have elected to constitute the territory part of the corporation under a power conferred upon them by the law. The territory or people therein have associated themselves for school purposes under the law, and actually existed as a corporation for all practical purposes, but because of a failure to comply with some provision of .the law have no legal right to corporate existence as against a direct attack by the state. But appellee cannot, in an independent suit, call the corporate existence in question. It is our view the existence of the school district could only be attacked by the state upon an information in the nature of a quo warranto, article 6398, R. C. S. If a corporation be acting under color of law and recognized by the state as such, the courts will not permit its corporate existence to be questioned in collateral proceedings. Brennan v. City of Weatherford, 53 Tex. 330, 37 Am. Rep. 758. It has been said:

“Three things are necessary to create the liability: A law or charter under which an organization de jure might be effected; an attempt to organize which falls so far short of the requirements of the law or charter as to be ineffectual, an assumption and exercise of corporate powers notwithstanding the failure to comply with the law or charter.” Re Gibbs Est., 157 Pa. 59, 27 Atl. 383, 22 L. R. A. 276.

We think the faicts in this case bring it within the requisites above set out. Even though the consent of the residents in the district was obtained in an irregular manner, it was obtained and acted upon by all therein situated for eight years. The corporation, we believe, comes within the definition of de facto.

The motion will be overruled.