35 S.W. 837 | Tex. App. | 1896
Appellant brought suit in the District Court of Liberty County on August 22, 1895, for a mandamus against appellees as the mayor and aldermen of the town of Liberty to require them to count the returns and declare the result of an election held on August 6, 1895, for the purpose of determining whether certain territory should be withdrawn from the limits of said town. A demurrer to the petition was sustained and judgment was rendered for the appellees in the court below.
It was alleged in the petition that the town of Liberty had been duly incorporated under title 17 of the Revised Statutes of Texas, but there is nothing further to show whether it was incorporated as a town of less than ten thousand inhabitants or of more than that number, or to show whether or not the corporation might not be void as including territory within its boundaries not permitted by law. Ordinarily the allegation that the town had been duly incorporated would be sufficient on general demurrer to show that it was so incorporated, but the petition shows further that the territory included within the limits of the town is of a *201 superficial area, extending 18,886 varas east and west and 5340 varas north and south, making an area of 27.8 square miles. In the absence of the allegation of facts to show that this large scope of territory was legally incorporated, it must be held that the allegation that the town of Liberty was duly incorporated is not sufficient even on general demurrer, when taken in connection with the allegation as to the limits of the town. If the town was not lawfully incorporated there was no authority to hold the election or to have the returns counted and the result declared, nor indeed any occasion therefor.
Again, before the election was held the act passed by the 24th Legislature entitled "An act to define the territory and provide for establishing the boundaries of cities and towns in this State, and to validate the incorporation of any city or town heretofore incorporated in this State in certain cases," had become a law, and the ninety days allowed therein for the resurvey of the corporate limits had not elapsed. Laws 1895, p. 17. While we do not think this act was a repeal of article 503a of the Revised Statutes under which the election was held to withdraw the territory from the town of Liberty, yet the purpose of it was to give an opportunity to the mayor and aldermen of towns incorporated before its passage and containing a greater superficial area than allowed by the act to have a resurvey made and the incorporation validated. The petition does not show that such a resurvey of the town of Liberty would have included any part of the territory which appellants sought to withdraw, but even if this could have been done, we are of the opinion that after the law took effect, nothing could be done to withdraw territory under the article 503a of the Revised Satutes until after the mayor and aldermen had had the resurvey made in compliance with the law. Therefore no error is shown in sustaining the demurrer to the petition.
The judgment will be affirmed.
Affirmed.
Writ of error refused.