The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1895-05-09

klllS VS.. lJOChC N w., CT ul'J llOliA III L ttSN
Motion for rehearing in Howell VS.
Hanrick, from Travis. is set for June
1895.
OPINIONS.
Following are the opinions delivered b.
the supreme court yesterday:
John Dean vs. The State, eX rel, Henr!
f. Bailey. Certified questions from Gal
weston county, First district.
This is a suit, instituted in the distric
court, in the nature of quo warranto, t
try the title to the office of county com
missioner of Galveston county. The value
of the office was alleged to be $3.50.
Question 1, had the district court juris
diction of the cause of action without re
gard to the value of the office?
We are of the opinion that the district
court had jurisdiction to hear and de-
termine this cause, without reference tC
the value of the Office in controversy. II
we should hold otherwise, we would be
compelled to also hold that justices of the
peace have the power to issue eXtraordi'
nary writs to try the title to an office
when the value of the office is less than
5000. (Secs. 16 and 10 Art. COM
The county court may issue eXtraordi-
nary writs only when necessary to enforce
its jurisdction-that is to say it has
no jurisdiction over a suit originally
brought to enforce right, as by jurisdic-
ton or mandamus; but can issue such
writs as auxiliary to a pending suit, when
necessary to enforce its jurisdiction over
such suit or it's subject matter.
Question 2. Could the district court
entertain jurisdiction of the cause, upon
the refusal of the commissioners court to
canvass the returns and declare the result,
and without it having done so?
'I'hn district pOnrtS have jurisdiction over
all causes of action, for which a remedy
is rot otherwise provided by law or the
constitution. (Sec. s, Art. V. COM
No other court having jurisdiction over
the cause, the district court has the power
to determine the right of the case and to
apply the remedy. An information in the
nature of quo warranto is an appro-
pirate remedy in such cases.
The second and third questions are sub
stantially the same. The title to an cleo
tive office depends upon the vote cast and
not upon the action of the canvaSsing
board. 81 Tex. 235.) The action of the
canvassing board is a part of the election
machinery and is practically necessary in
most cases in order that the result of the
election may be made known. But it is
not a pant of the election itself The cleo
ton is complete without it, though the
result may not be definitely known. 1t is
the duty of the commissioners court to
canvas the vote and declare the result
They may be compelled to perform this
duty by mundamus. But to require sue
cessful candidate first to proceed by man
damus against the court. and then bring
q second suit for the office. is practically
to deprive him of the fruits of his cleo.
ton and to set at naught the will of the
people.
We conclude that the relatOr had the
right to bring his action Immediately upon
the refusal of the court to canvass the
vote and declare the result.
Under the views expressed above. il
becomes necessary to answer the othel
questions certified. Opinion by Gaines, g.
The North Side Ry. Co. ct al. vs.. Thos
Worthington ct al. Suit by defendants in
error to recover the amount of certain
bonds issued by plaintiffs in error, and tt
foreclose certain mortgages given to Sc
cure said bonds; from Tarrant county
Second district.
There was a judgment for plaintiffs
which was affirmed by the court OF Civil
appeals.
The Fort Worth City company ant
the North Side Railway company were
both organized under the general law. :
the purpose of the first, as mentioned II
its charter. being "the purchase, subdlvl
sion and sale of lands in cities, towns ant
villages" and that the second, being tht
construction and maintenance OF stree
railways" The bonds sued on We're ISSUED
Jointly by the above named corporatl9n
and the proceeds thereof were divided De
tween them.
N Was the execution of the bonds ultri
wires?
A CORPORATION created for the purpose o
carrying on a business under u stctl tIt
which merely states the nature OF IN
business and does not further dehne II
movers. may exercise such powers as ar
reasonably necessary to accomplish IN
nurnose of its creation, and 1t may D
such as are usually incidental to TN
prosecution of such business, and no more
Isl Ala, 344; 6 Lea, ISL e..
These principles applied to the 1act
of this case lead to the conclusion Una
neither of the defendant corporation
had the power to extend its credit TO los
49, tbo interests of the other. We've
in the light of the peculiar facts OF III
case. it is plain that the building up an
settlement of the land owned by Tn
civ company tended to increase the pus
ness of the street railway company, WING
connected said land with the city. On IN
other hand, it is equally clear thaI III
establishment of the street railway tehue
TO promote the enterprise OF the 9Ihel 81 u
poration. 1t is also clear that the estal
lishment and maintenance OF street .. Ia
way is not an object which was expunS.es
in the articles of incorporation of the cit
company, and that the building OF an a.
dition to a city is not a purpose expresse
in the charter of the other corporate!
That the success of the one enterpri,'
tended to promote the success OF u
other. was not itself sufficient to authG
ize the joint issuance OF the ponds, ior u
reason that the benefits which were
accrue TO the one would not be the dire
result of the obligation named.
The transaction is one in which the t7