(dissenting).
The disturbing question upon the determination of which my decision turns is whether or not the resolution adopted by the Board of Commissioners of the City of La Porte on December 21, 1948, finding that such city at such time had a population of more than 5000 inhabitants is conclusive here in the absence of a showing of bad faith on the part of the Board in adopting such resolution.
No effort was made by the City of Houston to show bad faith on the part of the ■ Board. This burden, if cast on the City of Houston, is, in most instances, a nigh impossible burden to discharge.
I have concluded that the City of Houston does not have this burden and that the number of inhabitants of the City of La Porte on March 22, 1949, the date of the charter election, should be determined, as the Supreme Court said in City of Houston v. City of Magnolia Park, 115 Tex. 101, 276 S.W. 685, “by showing, as it would any other fact, that it had, at that very time, more than 5,000 inhabitants.” (Italics added)
In Magnolia Park the City of Houston attempted to annex the City of Magnolia Park over its objection that it had the right of self determination under the Home Rule Amendment to the State Constitution, (Art. 11, Sec. 5) by reason of its having more than 5000 inhabitants. The Court held that Magnolia Park “had the right to defeat the plan (forced annexation) by showing, as it would any other fact, that it had, at that very time, more than 5,000 inhabitants.”
In that case the Supreme Court had before it and discussed the case of Williams v. Castleman, 112 Tex. 193, 247 S.W. 263, upon which appellant strongly relies here.1 If that decision supports appellants here, then the Court in City of Magnolia Park could have said that such City could defeat the attempt of the City of Houston to annex it by passing a resolution declaring its population to be more than 5000 inhabitants rather than holding that Magnolia Park could defeat such attempt by proving its population to be in excess of that number as it would prove “any other fact.”
The Castleman case, supra, is not in point here. There the Court construed Art. 5, Sec. 18 of our Constitution as implying a grant of power to Commissioners Courts to determine the population within defined areas in order to perform its express constitutional duty of fixing the number and boundaries of justice precincts within the County.
The Constitutional provision involved here, Art. 11, Sec. 5, does not mention the governing body of affected cities and there is, therefore, no premise for an implied power to be granted it, there being no grant of an express power to it.
The case of Brooke v. Dulaney, 100 Tex. 86, 93 S.W. 997 involved Article 5, Section 20 of the Constitution calling for the *909election of a single clerk to act as both District and County Clerk, in “counties having a population of less than 8,000 persons” with no method of determining such population provided. In 1879, the Legislature passed a statute which directed that the question of whether a county had 8,000 population should be determined by an estimate made on the basis of 5 inhabitants for every vote cast for governor in such county at the last preceding general election. Under the terms of this act, Panola County could only show an estimate of less than 8,000 persons whereas the preceding federal census showed that the county had a population in excess of 20,000 persons. The Texas Supreme Court held the act of the Legislature was void.
The Court discussed a New Jersey case, In Re Sewer Assessment of Passaic, 54 N.J.Law 156, 23 A. 517, which held that when a statute referred to population that the word “population” bore the meaning of enumeration of inhabitants and refers to such enumeration as the law provides to be made, the New Jersey Court saying, “Any attempted enumeration not accompanied with power to inquire and to compel answers would be a mere farce.”
The Court in Dulaney held that the federal census controlled and that, if framers of the Constitution had intended that the methods of determining the enumeration in the case of district and county clerks should be confided to the Legislature, the framers would have expressly declared that intention. Chief Justice Gaines then went on to •say that, should it be conceded that it was intended to leave with the Legislature the power of prescribing a method of ascertaining the number of population, the act in question still could not be permitted to stand, saying:
“Sections 9 and 20 of article 5 of the Constitution in effect prescribe absolutely that every county having 8,000 population or more shall have two clerks; and even if the Legislature have the authority to regulate the mode of ascertaining the number of the inhabitants, it is not an arbitrary power; but it is one that must be exercised in such a manner as not to deprive the counties of a right guaranteed by the Constitution. Ordinarily the reasonableness of a law is a matter for the Legislature, and their determination is binding upon the courts. But when the Constitution declares that every county having a population of 8,000 shall have two clerks, the Legislature cannot either directly or indirectly take away the right so conferred. They cannot, under the guise of fixing a mode of ascertaining the number of the population, impair the mandate of the fundamental law. It follows, therefore, that if the Legislature has the right to fix the method that method must be such as is calculated to ascertain with some reasonable degree of approximation the true population of the county, otherwise the Constitution is infringed and the counties deprived of a right granted by it.”
There is no contention here that the United States census should control. The import of the Dulaney case is, however, that the governing Board o.f the City of La Porte cannot without constitutional or legislative authority finally determine by an ex parte resolution the number of its inhabitants on a particular date and that it cannot with legislative authority make such determination in an arbitrary manner and thus impair the mandate of the Constitution to the inhabitants of a city. If a governing board can arbitrarily determine that a city has more than 5000 inhabitants, it can arbitrarily find that it has less than such number.2 The decision is also of impor*910tance in gauging what the Legislature has done respecting the method of determining the population of a city seeking to adopt a charter under Art. 11, Sec. 5. Has it prescribed a method “calculated to ascertain with some reasonable degree of approximation the true population of the” city ? If not the “Constitution is infring’ed.”
All that the Legislature has done in the way of enabling legislation is reflected by Arts. 1165-1170, V.A.C.S.
Art. 1165, provides in part:
“The governing body of such city may, by two-thirds votes of its members, or upon petition of ten per cent of the qualified voters of said city, shall provide by ordinance for the submission of the question, ‘shall a commission be chosen to frame a new charter.’ ”
Article 1166 prescribes the requisites of the ordinance submitting such question, the form of ballot, etc. Art. 1167 provides for the submission of the charter framed by the Charter Commission to the voters.3 Art. 1168 provides that under certain circumstances the provisions as to the selection of a Charter Commission shall not apply to the first charter election held under the terms of “this law.” Art. 1170 provides the amendment of any existing charter.
None of these statutes provides any method for determining the population of the City. They could not, therefore, be said to prescribe a method “calculated to ascertain with some reasonable degree of approximation the true population of” La Porte.
If it is sound to argue under Art. 1165, supra, that since the governing body has authority to call an election to determine if a Charter Commission shall be chosen, it has the implied authority to find population of the city, then it is equally arguable that 10% of the qualified voters have the same authority.
In Ewing v. State ex rel. Pollard, 81 Tex. 172, 16 S.W. 872, the Court, Judge Gaines writing, held that whether the action of the inhabitants of Oak Cliff in attempting to incorporate their city is such as the Legislature empowered them to do is a “judicial” question. In that case he discussed and distinguished State ex rel. Goodnight v. Goodwin, 69 Tex. 55, 5 S.W. 678, cited by appellant herein, and we quote his words:
"But it is also urged that the county-judge of Dallas county had the power to determine what the limits of the proposed corporation should be, and that having ordered the election to determine whether or not the city should be incorporated with the limits as proposed by the petitioners, his action was. conclusive of the question. In support of this proposition, we are cited to the case of the State [ex rel. Goodnight] v. Goodwin, 69 Tex. 55, 5 S.W.Rep. 678. In that case the attempt was to annul the alleged corporation upon the ground, that, at the time of the election to determine the question whether the city should be incorporated or not, it did' not contain the number of inhabitants, required by the statute in order to empower it to become a body corporate-as a city. It was held that the action-of the county judge in ordering the-election was conclusive upon that question. But the statute provides that the-county judge shall order the election ‘if satisfactory proof is made that the city contains the requisite number of' inhabitants.’ Rev.St. art. 508; Sayles’ Civil St. art. 340a. Since it is made the-*911duty of that officer to inquire into and to be satisfied by proof of the fact that the proposed corporation contains the requisite number of inhabitants before ordering the election, it was very properly held that his decision of the question was intended to be final. But there is no such provision as to fixing the boundaries of the town. He is not invested with the power to withhold the order of election because the proposed limits may embrace territory that ought not to be included. It is proper that the boundaries of a proposed municipal corporation should be distinctly marked by the petitioners in the application to the county judge. This would seem essential, in order that it may be definitely known who are entitled to vote at the election to determine the question of incorporation. But we think that the inhabitants of the city or the promoters of the corporation must fix the limits for themselves.”
I consider this decision by Judge Gaines to be directly applicable, on principle, to the question under discussion.
It is my opinion that the population of La Porte on March 22, 1949, is a subject of judicial inquiry and should be determined as stated by the Supreme Court in the only opinion by it addressed specifically to the question before us, by proving such population as any other fact could be proved. This procedure accords with the elemental principles of due process. I would tenaciously adhere to them.
It is only necessary that I briefly notice the contention that the Legislature has validated the Home Rule status of La Porte and the annexation ordinance in question. The statutes cited to this end are 1174a-l, 1174a-2, 1174a-4 and 1174e, V.A.C.S. I have read these statutes. They do not purport to validate the Home Rule status of a city which did not have the required population of 5000 inhabitants when the election for such purpose was held. Any such attempted validation would, of course, be unconstitutional and void.
Art. 1174e does ratify and confirm certain annexation ordinances adopted by “home rule” cities. Unless La Porte is a home rule city, the statute does not apply. This is the question at issue.
I would hold the jury finding that La Porte had more than 5000 inhabitants on March 22, 1949, to be so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. I do not discuss this holding because the majority has not decided it and need not under its holding that the December 21, 1948, resolution is conclusive. I would reverse and remand this case. I therefore, respectfully dissent.
. Town of Freeport v. Sellers, 144 Tex. 398, 190 S.W.2d 813 is also cited by appellant on this point. There it is stated, “No contest is presented as to the Town of Freeport not having more than 5000 inhabitants at the time it sought to assert a right given under Section 5 of Article XI of the Constitution of Texas.” Such case, perforce, cannot be less in point here.
. Art. 11, See. 4 of the Texas Constitution provides, in part, that “Cities and towns having a population of five thousand or .less may be chartered alone by general law.” Italics added. Should the governing body of a city or 10% of its qualified voters without Constitutional or statutory authorization have the final authority to *910negative this exclusive constitutional authority of the Legislature by erroneously finding a city to have more than 5000 population?
. It is to be noted from this statute that the time of this election is to be fixed by the “charter commission,” and that all the “governing body” has to do with the election is to cause a copy of the proposed, charter to be mailed to the qualified voters.