Ewing v. State Ex Rel. Pollard

This is an appeal from a judgment of ouster rendered in a proceeding upon an information in the nature of a quo warranto filed by D.A. Williams, the county attorney of Dallas County, upon leave granted by the Hon. R.E. Burke, judge of the Fourteenth Judicial District of the State. The object of the information was to oust the respondents from the exercise of the functions of the offices of mayor and councilmen of the city of Oak Cliff, and the ground upon which the judgment was sought was that the city had never been legally incorporated. The information was filed upon the relation of the owners of real estate situate within the limits of the pretended corporation. The incorporation was attempted by an election under the general laws of the State, and the ground upon which its legality is attacked is that the limits prescribed in the petition and in the order for the election embrace a large scope of country which is rural in its character and which is no part of the city proper.

The information as to the limits of the attempted incorporation alleges "that the limits of said territory * * * are not identical with the real limits of the real city of Oak Cliff, which contains about 2000 inhabitants and covers an area of about two square miles only and is contained within said territory, but they extend many miles beyond the real limits of said real city of Oak Cliff and include about ten square miles of rural territory not part of said real city of Oak Cliff nor of any other city, but inhabited by people residing in residences widely disseminated over the same and pursuing agricultural avocations; said rural territory so unlawfully and unnecessarily included within said territory as aforesaid comprises farms, pastures, and unoccupied surveys of land as follow, to-wit," etc. Then follows a particular description of the lands, which it is not necessary to set out in this opinion.

A demurrer to the petition was overruled, and the court after hearing the evidence gave judgment for the relators. There was but little conflict in the testimony as to any material issue, and we may safely say that there was ample evidence to justify the court in concluding that the averments in the information were substantially proved. It would therefore be a profitless task to set out in detail the testimony adduced. There being no findings of fact in the record we must take every fact as proved which there was sufficient evidence to establish without regard to the conflicting testimony. Indeed, in so far as there is a conflict the preponderance of the evidence seems to be in relators' favor.

We may therefore assume that the limits of the attempted incorporation embrace an area of about ten square miles, of which only about two square miles are covered by the actual city, and that the territory outside of the city proper is composed of farms and unoccupied lands. It is true that it embraces the village of West Dallas, a suburb of the thriving city whose name it has in part adopted, but between the out-skirts of that village and the city of Oak Cliff there is approximately a mile of territory which is uninhabited. These facts in our opinion bring the case within the principles which were announced in the case of The State v. Eidson, 76 Tex. 302. In that case we held that the statute which authorized towns and villages to incorporate for school purposes only did not authorize them to include within the limits of the proposed corporation adjacent territory inhabited solely by a rural population. For a stronger reason they can not embrace territory not inhabited at all. That statute authorized towns and villages to incorporate for school purposes which were empowered to incorporate for municipal purposes under the provisions of chapter 2 of title 17 of the Revised Statutes. Sayles' Civ. Stats., art. 541a. The corporation in the present case was attempted to be created under article 340a of Sayles' Civil Statutes, which article reads as follows: "When a city or town may contain 1000 inhabitants or over it may incorporate as a city or town in the manner prescribed by chapter 2 of this title," etc. It follows that the manner of incorporating towns and villages for school purposes, and for incorporating cities, towns, and villages for municipal purposes, are precisely the same; and that if a town is not authorized to embrace within the limits of its corporation for school purposes territory beyond the limits of the actual town, a city when it seeks to create a corporation for municipal purposes must confine itself to its actual boundaries. This is the literal meaning of the statutes upon this subject. Who are empowered to create the corporations? The inhabitants of cities, towns, and villages. What are they empowered to incorporate? The cities, towns, and villages themselves, and not also such portions of the adjacent territory as their inhabitants may be pleased to embrace within the limits of the corporation.

But it is insisted that the boundaries of a municipal corporation is a question to be determined by the Legislature and not by the courts. This may be true as to such municipalities as have been or may be established by special legislative enactments. It was so held by this court in Norris v. The City of Waco, 57 Tex. 635. So also if the Legislature had provided that the cities proposing to incorporate under the general laws should be empowered to embrace territory lying beyond their actual limits, it may be that in the clear abuse of the power it would be the duty of the courts to respect the legislative will and to hold an incorporation including such additional territory valid. But as we construe the law no such power has been granted, and the question we have is whether or not the action taken by the inhabitants of Oak Cliff in attempting to incorporate their city is such as the Legislature empowered them to do or not. This is a judicial and not a legislative inquiry.

But it is also urged that the county judge of Dallas County had the power to determine what the limits of the proposed corporation should be, and that having ordered the election to determine whether or not the city should be incorporated with the limits as proposed by the petitioners his action was conclusive of the question. In support of this proposition we are cited to the case of the State v. Goodwin, 69 Tex. 55. In that case the attempt was to annul the alleged corporation upon the ground that at the time of the election to determine the question whether the city should be incorporated or not it did not contain the number of inhabitants required by the statute in order to empower it to become a body corporate as a city. It was held that the action of the county judge in ordering the election was conclusive upon that question. But the statute provides that the county judge shall order the election "if satisfactory proof is made that the city contains the requisite number of inhabitants." Rev. Stats., art. 508; Sayles Civ. Stats., art. 340a. Since it is made the duty of that officer to inquire into and to be satisfied by proof of the fact that the proposed corporation contains the requisite number of inhabitants before ordering the election, it was very properly held that his decision of the question was intended to be final. But there is no such provision as to fixing the boundaries of the town. He is not invested with the power to withhold the order of election because the proposed limits may embrace territory that ought not to be included. It is proper that the boundaries of a proposed municipal corporation should be distinctly marked by the petitioners in the application to the county judge. This would seem essential in order that it may be definitely known who are entitled to vote at the election to determine the question of incorporation. But we think that the inhabitants of the city or the promoters of the corporation must fix the limits for themselves. From the nature of the case the area occupied by a town or city is so marked by the aggregation of residences and appurtenant structures that it is always practicable to fix the boundaries so as not to include any territory not authorized to be embraced. With a just disposition to respect the rights of the owners of adjacent property, no body of petitioners need make such a mistake as to this matter as will imperil the validity of the act of incorporation.

To rebut the case made by the relators the respondents adduced testimony showing that the city of Oak Cliff had had a remarkable growth; that the increase of its population and area and of its public improvements was without a parallel in our State, and that by reason of these facts the lands embraced in the limits prescribed for the corporation were greatly enhanced in value. It was shown that the values of the real estate belonging to the relators and lying within the limits had been greatly increased, and that at the time of the trial they far exceeded the price of mere agricultural lands. If it were true that all lands lying adjacent to a city which were enhanced in value by its establishment and growth constituted a part of the city, these facts would be worthy of consideration in determining the case. But such is not the fact. A city does not extend beyond the area occupied by its houses and inhabitants. For the same reason the fact that much of the territory lying beyond the actual city has been laid off into blocks and lots as prospective additions does not aid respondents' case.

We conclude that the court neither erred in overruling the demurrer to the information nor in giving judgment for the State upon the evidence adduced.

But it is complained that the court erred in admitting in evidence a map showing the surveys, etc., within the limits of the pretended corporation. The map was admitted to be correct except as to a portion which was colored with the design to represent the area actually covered by the city. If the case had been on trial before a jury the introduction of the map may have been improper. It may have been calculated to produce a false impression upon the minds of persons unaccustomed to discriminate between legal and illegal evidence, but under the facts of this case it would even then have been no reason for reversing the judgment. At all events it is not to be presumed that the court was in any manner improperly influenced by so much of the map as was not admitted to be correct.

It is also complained that the court erred in not permitting the respondents to prove that one of the relators lived in a thickly settled part of the city. The testimony was offered after the evidence had been closed, and it was probably upon this ground that it was excluded. But there was no error in excluding it, for the reason that it was wholly immaterial as to any issue in this case whether the relator in question resided in the city or not.

It is also insisted that the court erred in rendering judgment dissolving the corporation of the city of Oak Cliff, because the city was not made a party defendant to the suit. If the city had ever been legally incorporated, and if the object of the suit had been to dissolve the corporation for nonuser or misuser, or to oust it from the exercise of franchises not conferred by its charter, it should have been made a respondent in the information. Such, however, is not the nature of the case. The theory of the information is that there is no such corporation as the city of Oak Cliff, and that the respondents are acting as mayor and councilmen of a municipality which does not exist. Logically it would seem that the pretended corporation should not be made a party when the action is based upon the allegation that no corporation has ever in fact been lawfully created. There are authorities which hold that the individuals composing the body corporate are the proper parties to a proceeding to declare the corporation void. The People v. Railway, 16 Wend., 113; The People v. Carpenter, 24 N.Y. 86; The State v. The Cincinnati, etc., Co., 18 Ohio St. 262; 2 Dill. Mun. Corp., sec. 895; High on Ex. Rem., sec. 753. In Farmer v. The State, 69 Tex. 561, the individual corporators were proceeded against, and a judgment of ouster was rendered against them. The judgment was affirmed in this court, though the question of making the pretended corporation a party was not raised upon the trial.

Since it is impracticable to make all the inhabitants of a de facto municipal corporation parties defendant, we are of the opinion that it is sufficient to proceed against the persons assuming to compose the governing body. Under the information filed in this case, in order to oust the respondents it was necessary to establish the fact that the attempted incorporation of the city of Oak Cliff was void from the beginning, and that being the ground upon which the judgment of ouster was based, it was not error to so declare in the judgment. Without such declaration the judgment conclusively established the invalidity of the incorporation as against the respondents, and they have no right to complain because the judgment so expressly declares.

There is no error in the judgment, and it is affirmed.

Affirmed.

Delivered May 22, 1891.