The State of Texas ex rel. v. The Town of Baird et al., 79 Tex. 63

GAINES, Associate Justice. This was an information for a quo warranto, filed by the district attorney of the Forty-second Judicial District upon the relation of J. H". Rushing and others, to have the incorporation of the town of Baird adjudged invalid.

The information alleges in effect, among other things, that the town was attempted to be incorporated under the general laws by an election held in accordance with the provisions of the statute, but claims that it embraces territory which does not properly belong to the town and which can not be legally included within its limits, and that for that reason the election was a nullity. The main contention is that on the west the limits of the town, as designated for incorporation, embrace the residence of J. H.

Rushing, one of relators, and 115 acres of land belonging to him which is devoted solely to agricultural purposes. It was proved that the town had been originally laid out by the Texas & Pacific Railway Company, and that a plat thereof had been recorded in the office of "the county clerk. The railroad company had. laid off an addition into blocks and lots, of which a map also had been made and recorded. Another addition had also been made to the town; but Rushing’s land, with the exception of a few lots between his house and town, lying in the last addition, belonged to none of them. Delivered December 9, 1890.

It is insisted that the incorporation should have been confined to the town as laid off into blocks and lots. But -we think otherwise. A town may exist without being divided into lots; and on the other hand, neither naked blocks or lots, whether with or without a map, constitute a town. If the population extended beyond the platted portion of the town, such extension was properly embraced within the limits-of the incorporation. It appeared in evidence that the relator Rushing did not do business in the town, but it was shown that he attended a church and sent his children to school within its limits.

While residing at the same place he had been engaged in a banking business in the town, and was at the time of the trial the superintendent of a Sunday school which was taught in the church which he attended. Since he enjoyed the privileges incident to his proximity to the town, he can not justly complain of having his residence embraced within it. The inclusion of his land presents a more difficult question. But; as intimated in The State v.

Eidson, 76 Texas, 302, it may not always be practicable to incorporate a town without including within its limits some territory devoted purely to pastoral or agricultural pursuits. Something may be allowed for prospective expansion. In a case like that just cited (The State v. Eidson), where there has been a clear abuse of the incorporating power conferred by the Legislature, the courts should no.t hesitate to dissolve the alleged incorporation.

But it would not do to annul such municipal corporation created by an election under the general law upon proof of the inclusion within its limits of a small strip of agricultural land. The effect of such a ruling would probably be to annul the charters of many growing and thriving towns in the State which are acting as incorporations under the general laws—a result it is to be presumed the Legislature did not contemplate. In case of a clear abuse of the power to fix the corporation limits in an ' attempt to incorporate under the general law, the courts should not hesitate to annul.

But we do not think such abuse has been shown in this case. Therefore we can not say that the court erred in holding under the facts in evidence that the town of Baird was legally incorporated. The judgment is affirmed. Affirmed.