(dissenting).
I am not in accord with the majority in affirming the action of the trial court in refusing a writ of mandamus against A1 Tem-pleton, appellee herein, to canvass the election in regard to the incorporation of the Town of Honey Springs; and in refusing a writ of'injunction restraining the City of Dallas from carrying into effect an ordinance, then in course of adoption, to attach the territory, or a part thereof, which was included in the Articles of Adoption by the Town Council of said proposed incorporation. This is clearly a race of power, aided and assisted by the orders of the county judge in favor' of the City of Dallas as against the majority of the citizens of Honey Springs, as expressed at the polls.
It is needless, I think, to say that the county judge was without constitutional authority, on his own motion, to declare the election involved in this suit illegal, because, forsooth, the City of Dallas had begun and was in course of adopting a city ordinance • to annex the territory involved; and that the county judge was without authority in refusing to canvass the election and declare the result. This appeal reaches this court on agreed stipulation of facts: On December 17, 1946 the Honorable A1 Templeton, County Judge, was presented with a petition, in regular form, by George Beyer and seventy-five other qualified voters of the Town of Honey Springs, Texas, a de facto municipality, for an election to be held in the territory described in said petition, for the purpose of determining whether or not the same should be incorporated for municipal purposes as a City under the commission form of government; and also that an election be ordered to be held at the same time, for the purpose of electing a mayor and two commissioners of said City. On said petition the-county judge entered the following order:
"It appearing• that the said petition bears the requisite number of qualified voters who are residents of said City, and is in every respect in conformity with law; and, it further appearing that the area comprised within the boundaries defined in said petition does not exceed two (2) square miles, and that all other facts set up in said petition are found to be true. Therefore, I, A1 Templeton, in my official capacity as County Judge of Dallas County, Texas, do hereby grant said petition and do hereby order that an election be held at the Field Office at Bonnie View and Overton Road in the said City of Honey Springs, Texas, on the 25th day of January, 1947, for the purpose of determining whether or not the same shall be incorporated for municipal purposes as a City, under the Commission form of government, under authority conferred by Article 1155 et seq., Chapter 12, Title 28, Revised Civil Statutes of Texas of 1925; and, I hereby appoint George Beyer and Beryl Dick as judges of said election, and the said George Beyer is designated as presiding judge, and I appoint W.R. Fewell and George Salmon as clerks to assist in holding such election.” (Italics mine.)
The order then recites the qualification of the voters to vote at said election, the form of the ballot, the regulation of the election, description of the territory involved, and directs that notice be published in the newspapers for thirty days as required by law for such election.
On December 18, 1946, without petition,, motion or suggestion of any kind from any of the aforesaid petitioners, the county judge, ex parte, presumably on his own motion, made and entered an order withdrawing, setting aside and holding for nought the previous order made calling for the election, and therein directed the clerk of his court to strike said previous order from the record and, in lieu thereof, to enter an order denying said petition and dismissing the cause. This subsequent order is based on the following inclusive recitations :
“On this the 18th day of December, 1946 on its own motion, the court has reconsidered the petition and form of order presented to him in connection with the at*699tempted incorporation of Honey Springs, and I find that the area so to be incorporated is already the subject of annexation by the City of Dallas, a municipal corporation, and that no proof was offered on the essential allegations made in said petition, and that I, A1 Templeton, County Judge of Dallas County, Texas, am without jurisdiction to entertain said petition for incorporation, and that no satisfactory proof was offered in connection therewith, and said petition is not well taken, and that the order signed by me inadvertently is improper and should in all things be set aside and said petition denied.”
On January 25, 1947, after due election notices were published as required by law, and without notice from the county judge of his subsequent order attempting to nullify his action in calling the election, the election judges and clerks went forward with the election in accordance with the county judge’s order; and in due time made returns thereof to the county judge to be canvassed by him, and sought an order declaring the results thereof. The county judge, in a long, extended order, most of which is copied verbatim in the majority opinion, refused to canvass the returns or make order declaring the result, manifestly basing his action on relation of appellees that the election and returns thereof would effectively embarrass annexation by'the City of Dallas.
I think it is clear that a writ of mandamus against A1 Templeton should have been issued by the trial court, regardless of the effectiveness, or embarrassment, of the returns and declaration of the result of the election. The canvassing of the returns and declaration of the result, also the calling of the election, are ministerial duties of the judge, not judicial; hence mandatory for the county judge to canvass the returns and declare the result. The county judge has no authority, on his own motion, to revoke an order for an election, or refuse to canvass the election and declare the result.
In the case of Cameron, County Judge, v. Baker et al., Tex.Civ.App., 13 S.W.2d 119, 120, the court asked the question, pertinent here:
“Do the statutes authorize a county judge, after calling an election in the statutory manner upon the petition of 20 or more persons, describing themselves resident tax payers of the school district in which the election is being held, arbitrarily and without a hearing, or any other forms prescribed by statute, to declare the election invalid and set aside all proceedings of the voters under his order?”
The court then answered the question thus:
“It would be a dangerous power lodged in the hands of a county judge to issue an ex parte order to election judges, while they are holding an election, to desist further action and proceed no further in the election, and no statute has ever granted such power to a county judge. The trial judge found that the law was fully complied with by the county judge, and that law provides for no authority to the county judge other than to call the election, canvass the returns of the election officers, and declare the results. Articles 2757 and 2758 Rev.St.1925, as amended by the Fortieth ■ Legislature at the regular session (chapter 238, p. 353). If the election be illegally held, the matter can be inquired into and settled by the proper judicial tribunal on application of any taxpaying resident of the district. The authorities cited by appellant do not sustain his propositions, but the case cited of Ewing v. State, 81 Tex. 172, 16 S.W. 872, tends to show a lack of authority in the county judge to cancel an order of election, when once made and being carried into effect. The petition for election was signed by 20 resident qualified voters, who were taxpayers.”
On rehearing, that court, further emphasizing the answer, said:
“The petition was sufficient to sustain the issuance of a mandamus to require the county judge to canvass the returns of the election held under his order. He had exercised all the power and authority given to him by the statute when he ordered the election, and he could take no further action in regard to the election until the returns were placed in his hands and it became his duty to canvass the returns and declare the result. He had fully adjudi*700cated the question of'the right of the signers of the petition to have an election ordered, and he had ordered it, and then ended his power and authority. * * * The statute makes it his absolute duty to canvass the returns and declare the result (Italics mine.)
So, in the case at bar a very similar situation exists: On the petition of more than seventy-five qualified voters, on December 17, 1946, A1 Templeton, County Judge, fully adjudicated the right of the signers of the petition for an election, and decreed that the petition was “in every respect in conformity with law”, and “all other facts set up in said petition are found to be true.” On such adjudicated matters, the judge ordered the election to be held “on authority conferred by Article 1155 et seq., Chapter 12, Title 28, Revised Civil Statutes of Texas of 1925”;’ appointed officers of the election; designated the place where same should be held and ordered election notices to be published within the statutory period of time. The election was thus held; the returns of the election duly presented to the county judge to canvass and declare the result. Indeed, as said in the above cited case, the statute for elections makes it the plain, absolute duty for the county judge to canvass the returns and declare the results; it would be a dangerous power lodged in the hands of a county judge to issue an ex parte order cancelling and annulling an election, when once called and the election machinery put into motion; and to refuse to canvass the returns and declare the result, because, forsooth, the result would, or might, affect the annexation program of the City of Dallas and. of those seeking to defeat the incorporation of said City of Honey 'Springs. The county judge is not clothed with judicial power, in election matters, to declare election orders illegal after the order calling for the election. All the reasons assigned by the county judge for setting the call aside, or the reasons'he assigned for refusing to canvass the returns and declare the result, are matters lodged exclusively in district courts, the proper judicial tribunals on application of any taxpaying resident of the district, Hence the order of the county judge made on December 18, 1946, attempting to cancel the call for the election, and, too, on his own motion, without notice to the affected parties, dismissing the taxpayers’ petition and, subsequently, for the same reasons, refusing to canvass the returns and declare the result of the election, was the application by him of extra-judicial power; a clear refusal to perform his ministerial duties.
The community of Honey Springs, at the time of the aforesaid election, was a functioning municipal corporation, with full corps of City officials, exercising the duties usually conferred on such officials. Such was its'status when appellee, City of Dallas, sought by ordinance to annex the territory of Honey Springs. From the beginning, the community of Honey Springs undertook to incorporate under color of law, and in good faith organized in the method prescribed, and a colorable organization proceeded thereafter to function and to exercise the full powers of a municipal corporation, until interrupted by litigation attempting to pave the way for it to be annexed to the City of Dallas. The law recognizes that, although a public or municipal corporation may not be a de jure corporation, it may exist de facto. Thus when a municipal body assumes color of authority, and exercises such authority continuously, with the consent of the governed, as in the case at bar, the powers of such public corporation, broadly stated, are those which the same entity could perform were it a corporation de jure. Such a corporation cannot be attacked collaterally, but can only be called in question in a quo war-ranto proceeding instituted in the name of the State. City of El Paso v. Ruckman, 92 Tex. 86, 46 S.W. 25; Graham v. City of Greenville, 67 Tex. 62, 2 S.W. 742; Brennan v. City of Weatherford, 53 Tex. 330, 37 Am.Rep. 758; Hunt v. Atkinson, Tex.Civ.App., 12 S.W.2d 142; 17 S.W.2d 780; 18 S.W.2d 594; Cook v. Bayne, Tex, Civ.App., 38 S.W.2d 419; Grisham v. Tate, Tex.Civ.App., 35 S.W.2d 264. A municipality, whether de jure or de facto, which has taken steps to change or alter its existence, or status of its corporation, cannot: be defeated by a subsequent attempt of an*701other municipality to annex the territory. In home rule city, such as the City of Dallas, which has adopted a charter authorizing the annexation of “additional territory lying adjacent to said City,” the annexed additional territory is expressly limited to “unoccupied” territory adjacent to the City, not a part of another municipality. Act 49th Legislature, Chapter 97, p. 147; Art. 11, sec. 5, Texas Constitution, Vernon’s Ann.St.; City of Houston v. State 142 Tex. 190, 176 S.W.2d 928, reversing and rendering, 171 S.W.2d 203; Hunt v. Atkinson, Tex.Com.App., supra; Dry v. Davidson, Tex.Civ.App., 115 S.W.2d 689, error refused, McGuire v. City of Dallas 141 Tex. 170, 170 S.W.2d 722. It cannot be validly questioned that the home rule cities may extend their boundary limits by ordinance duly enacted by their governing bodies, but such power extends to the territory sought to be annexed, “unoccupied territory, contiguous, and adjacent to- its city limits.” It will be observed that the Act in question in no otherwise describes the territory that may be annexed, or in what manner, or by whom such. territory may be occupied, to avoid annexation. The limitations placed upon the power of annexation by such cities, exclude the idea that territory “occupied” by another municipality, exercising governmental control and functioning in all respects as a .legal entity, is excluded from the power of such home rule cities to annex the. territory. Therefore, the City of Dallas was without the power to annex by ordinance the territory occupied and used by the municipality of Honey Springs, and to extend its government control over the affairs of said municipality without the consent of the citizens thereof expressed at an election to dissolve the corporation. The territory was “occupied” by the de facto corporation, if, in fact, it was not a de jure corporation.
Therefore the judgment of the court below should be reversed, and a writ of mandamus should issue from this court commanding A1 Templeton, County . Judge of Dallas County, Texas, to canvass the election returns and declare the result thereof; and that writ of injunction issue against the City of Dallas, its officers, servants and. employees, restraining them from extending its government supervision and control' over the affairs of the City of Honey-Springs; and from interfering with the governmental function of said City.