H. P. Mathews et al. v. The State ex rel. Alice Wilson et al., 82 Tex. 577

HENRY, Associate Justice. At the instance of twelve individual relators the information, in the nature of a quo warranto, was filed in this cause to oust the mayor and aldermen of the city of Beeville, and to have the proceedings to incorporate said city declared void. The relation was sworn to by only eight of the persons who signed it, and subsequently five of these asked to be permitted to withdraw from it. Their request was refused. . The respondents excepted to the information, because some of the persons signing it did not swear to it.

The answer of the respondents contained the following allegations: “That relator A. C. Jones had served as mayor of said city; that relator B. W. Klipstein had served as its treasurer; that relator Alice Wilson had made a contract with, said city to furnish it with a garbage dumping ground, for which she •had received from said city the sum of $50; that the relators B. W. Klipstein, J. J. Welder, J. M.

Chittim, Yiggo Kohler, and Hugo Heldenfels had surveyed and mapped all of the lands which they owned within said city limits into lots and blocks, and had a map of the same recorded; that all of the relators except F. E. Burr, William Burr, J. J. Welder, J. M. Chittim, and Alice Wilson signed the petition to the county judge to incorporate the said city of Beeville with the said limits of three miles square; that all of said acts of acquiescence on the part of said relators occurred prior to the institution of this suit. The court sustained plaintiffs’ exceptions to these allegations.

It was said by this court in the case of Hunnicutt v. The State, that “the State’s officer might file the information without relation, and in that case it would seem that his official statement, unsworn, would be sufficient to authorize a judge to direct an information to be filed.” A single individual may make the relation, and the effect of it will not be less if he unites with others who subsequently offer to withdraw; nor if the others could be properly permitted to withdraw would the case be changed.

A relation under oath may properly be relied upon as the sole ground for beginning and permitting the prosecution of the case; but it does not result from this that the conduct and continued prosecution of the cause is any less under the exclusive control of the State’s attorney and the court than it would have been if, upon facts sufficiently well known by the State’s officer without the aid of an affidavit, it had been begun by the officer upon his own motion.

But while the relators will not be permitted to take the control of the prosecution of the case from the State’s attorney, they have no right, after a suit has been instituted at their instance, to withdraw from it and thus avoid any responsibilities that may properly attach to them as the result of their having connected themselves with it in the first place. We think that the relation was sufficient, and that the court did not err in refusing to a part of the relators permission to withdraw from it.

It may be very well questioned whether a suit of this character, otherwise properly brought and meritorious, can be defeated because the relators would be estopped if they were suing in their individual rights; but however that may be, we are of the opinion that as to the relator Alice Wilson, at least, there is nothing alleged that would estop her, and upon that ground alone the judgment of the court in sustaining plaintiffs’ exceptions to the answer may be approved.

Appellants’ only remaining assignment of error reads as follpws: “It was proved on the trial of this cause, by evidence competent and uncontradicted. “1. That on the 16th day of January, 1890, the town of Beeville had more than 1000 inhabitants, and was on said date incorporated under the Revised Statutes of this State as a city of 1000 inhabitants or over, with limits and boundaries designated and fixed, and that all of the proceedings by which said incorporation was effected were regular and in accordance with the provisions of the statutes governing. “2.

That from the date of the said incorporation the said city of Beeville has continuously up to this time performed all of the functions of a city of 1000 inhabitants or more, having, upon incorporation, regularly and legally elected'a mayor, board of aldermen, and other officers, who qualified as such and performed all such duties as pertained to their respective offices; the taxes, ad valorem and occupation, were levied, collected, and expended by said city in its name; that ordinances for the prevention and punishment of crimes were passed by said city, and that said ordinances were enforced by offenders being arrested, triéd, and imprisoned for the violation of the same; that control was taken over the streets and thoroughfares throughout said city limits; in short, that the government of the affairs of said city was completely in the hands of the said officers. “3.

That the corporation of the city of Beeville was from the time of its said creation, and was on the 2d day of March, 1891, and has been since, recognized by the State of Texas as a legal and existing corporation; that the Commissioners Court of Bee County surrendered to the said city its jurisdiction over the public roads and thoroughfares within the limits of said city, and recognized the right of said city to the exclusive control thereof; that the County Court of Bee County recognized the legality of said corporation by trying criminal cases appealed from the mayor’s court of said city; that the county judge of Bee County surrendered to the administration of said city the management, control, and government of the free schools within its limits; that on the 2d day of March, 1891, and previous and subsequent thereto, said city of Beeville had a population of more than 1000 inhabitants. “Under this proof, the court erred in holding that the curative act of the Twenty-second Legislature, entitled ‘An act to amend

chapter 1, title 17, of the Revised Civil Statutes of the State of Texas, by the addition thereto of

article 340c,’ did not apply and validate said incorporation, and consequently erred in dissolving said incorporation and ousting respondents.” The act here referred to reads as follows: “Article 340c. All towns and cities of 1000 inhabitants or more which have heretofore attempted to accept the provisions of this title and to become incorporated cities of 1000 inhabitants or more, under the general laws of Texas, and have failed to comply with all the requirements of said general law, or which are not included within the literal meaning of those cities which are authorized to accept the provisions of said general law, and all towns and villages incorporated under

chapter 11 of title 17 of the Revised Civil Statutes or by special charter or otherwise, but which now have 1000 inhabitants or more and which have heretofore attempted to accept the provisions of this title in lieu of their said town or village charter and become incorporated cities of 1000 inhabitants or more, but which said cities have from and after the dates of their several attempted incorporations and their several efforts to accept the provisions of this title exercised the functions of cities of the class named, and were by the State of Texas recognized as such cities, be and the same are hereby declared to be cities of 1000 inhabitants or more, and the several acts whereby they attempted to accept the provisions of said law are hereby in all things validated.” This statute does not control or relate to the issue involved in this case.

It does not pretend to define what constitutes a city or town. It only refers to and affects the status of towns and cities proper that come within its terms. Some such towns and cities, about which there has been no controversy as to their limits including rural territory that could not be considered as being part of the town, have attempted to accept the provisions of the title referred to in the act, and their action in that respect was held void by the courts, either because the law did not authorize the procedure at all in the particular instance, or because its directions were not sufficiently adhered to.

Harness v. The State, 76 Texas, 566; Largen v. The State, 76 Texas, 323; The State v. Dunson, 71 Texas, 65; Buford v. The State, 72 Texas, 182. Delivered December 18, 1891. Until there is legislation prescribing some reasonable rule by which the limits of such municipal corporations may be determined otherwise than by their mere designation as cities and towns, this court will adhere to the conclusions announced in Ewing v. The State, 81 Texas, 172, and other cases. The judgment is affirmed. Affirmed.