(dissenting).
I dissent. This is a special election contest. The appellees seek by the harsh remedy of Mandamus to compel Judge Tom N. Cope, County Judge of Cass County, Texas, in his official capacity, to certify the results of an election to incorporate the City of Domino, Cass County, Texas.
The election which appellees seek to enforce was held on November 1, 1969. Appellant had 20 days, by statute, to declare the result of the election. Appellees filed their original petition for Mandamus on Nov. 10, 1969 before the 20 days had expired and before appellant had signed any order whatever.
The case was tried on Nov. 26, 1969, before the court, without the interventions of a jury, despite the appellant’s request therefor. Judgment was signed and entered on Dec. 1, 1969, granting the writ of Mandamus.
Appellant has perfected his appeal and brings forward 4 points of error.
The opinion was presented to me marked “Per Curiam Opinion” without any discussion with me as to the facts and the law of the case prior to that time. It is my humble knowledge that a “Per Curiam Opinion” is one given in a case in which all the judges first agree, and a fuller statement is not regarded as necessary. 21 C.J.S. Courts § 217, p. 400; 21 C.J.S. Courts § 222 b, p. 415, (per curiam opinion); 21 C.J.S. Courts § 186 c, n 75, p. 300. See, also, the cases cited in 32 Words and Phrases, “Per Curiam,” p. 17.
Art. 1133 V.A.T.C.S. provides that when a Town or Village containing more than 200 inhabitants and less than 10,000 in*189habitants may be incorporated as a Town or Village in the manner prescribed in Chapter 11, Title 28, R.C.S., 1925 and all amendments thereto.
Art. 1134, reads in part, as follows:
“Art. 1134. (1034) (580) Mode of incorporation :
“If the inhabitants of such town or village desire to be so incorporated, at least twenty residents thereof, who would be qualified voters under the provisions of this chapter, shall file an application for that purpose in the office of the county judge of the county in which the town or village is situated, stating the boundaries of the proposed town or viUage, the name by which it is to be known when incorporated, and accompany the same with a plat of the proposed town or village including therein no territory except that which is intended to be used for strictly town purposes. * * * A new election shall not be ordered in less than one year.” (Emphasis added.)
This writer takes judicial notice of the fact that on Oct. 31, 1969, there was an election held that included all the same area as the proposed City of Domino, which was duly described as a Town or Village, and the majority of the qualified voters voted against it.
The purported town of Domino, Texas, secured the services of a surveyor and surveyed out certain highways, proposed highways and county roads and certified “The boundaries of the proposed town of Domino, in the County of Cass, Texas, when incorporated shall be as follows:
Field notes describing the perimeter of a 127.4 acre tract of land situated in Cass County, Texas.
COMMENCING at the intersection of the center line of U. S. Highway No. 59 and Farm to Market No. 3129, same being at center line sta. 549-79 on U. S. Highway No. 59= 0+00 on Farm to Market No. 3129;
THENCE: S. 83° 37' E. with the center line of Farm to Market No. 3129 220 feet to THE POINT OF BEGINNING for the herein described tract.
THENCE South 00° 12' West 2025 ft. to a point;
THENCE East 1310 ft. to a point;
THENCE North 1826 ft. to a point;
THENCE South 83° 37' East 3242 ft. to a point
THENCE South 89° 32' East 5200 ft. to a point;
THENCE South 33° 43' West 230 ft. to a point;
THENCE South 17° 00' West 355 ft. to a point;
THENCE South 7° 15' West 145 ft. to a point;
THENCE South 24° 50' West 510 ft. to a point;
THENCE South 1° 15' West 215 ft. to a point ;
THENCE North 65° 00' West 180 ft. to a point;
THENCE South 25° 00' West 190 ft. to a point;
THENCE South 65° 00'East 180 ft. to a point;
THENCE South 25° 00' West 265 ft. to a point;
THENCE South 67° 35' West 250 ft. to a point;
THENCE North 64° 15' West 250 ft. to a point;
THENCE North 150 ft. to a point;
THENCE West 180 ft. to a point;
THENCE South 180 ft. to a point;
THENCE East 185 ft. to a point;
THENCE South 64° 15' East 245 ft. to a point;
*190THENCE North point; 67° 35' East 275 ft. to a
THENCE North point; 25° 00' East 480 ft. to a
THENCE North point; Io 15' East 225 ft. to a
THENCE North point; 24° 50' East 505 ft. to a
THENCE North point; 7° 15' East 145 ft. to a
THENCE North point; 17° 00' East 350 ft. to a
THENCE North point; 34° 10' East 225 ft. to a
THENCE South point; 89° 32' East 1640 ft. to a
THENCE South point; 4° 45' East 980 ft. to a
THENCE South point; 1° 05' East 450 ft. to a
THENCE South point; 88° 55' West 190 ft. to a
THENCE South point; 1° 05' East 190 ft. to a
THENCE North point; 88° 55' East 190 ft. to a
THENCE South point; 1° 05' East 220 ft. to a
THENCE South point; 85° 10' West 190 ft. to a
THENCE South point; 4° 50' East 190 ft. to a
THENCE North point; 85° 10' East 190 ft. to a
THENCE South point; 4° 50' East 290 ft. to a
THENCE South point; 18° 45' East 1350 ft. to a
THENCE South point; 85° 45' West 450 ft. to a
THENCE North 4° 15' West 100 ft. to a point;
THENCE South 85° 45' West 190 ft. to a point;
THENCE South 4° 15' East 190 ft. to a point;
THENCE North 85° 45' East 190 ft. to a point;
THENCE North 4° 15' West 60 ft. to a point;
THENCE North 85° 45' East 456 ft. to a point;
THENCE South 16° 15' East 789 ft. to a point;
THENCE South 22° 00' East 610 ft. to a point;
THENCE South 9° 45' East 500 ft. to a point;
THENCE South 8° 00' West 255 ft. to a point;
THENCE South 23° 50' West 300 ft. to a point;
THENCE North 66° 10' West 310 ft. to a point;
THENCE South 23° SO7 West 190 ft. to a point;
THENCE South 66° 10' East 310 ft. to a point;
THENCE South 36° 05' West 160 ft. to a point;
THENCE North 53° 55' West 190 ft. to a point;
THENCE South 36° 05' West 190 ft. to a point;
THENCE South 53° 55' East 190 ft. to a point;
THENCE South 36° 05' West 665 ft. to a point;
THENCE South 33° 20' West 660 ft. to a point;
*191THENCE North 56° 40' West 190 ft. to a point;
THENCE South 33° 20' West 190 ft. to a point;
THENCE South 56° 40' East 190 ft. to a point;
THENCE South 72° IS' West 310 ft. to a point;
THENCE South 45° 00' West 350 ft. to a point;
THENCE South 23° 55' West 810 ft. to a point;
THENCE South 20° 45' West 485 ft. to a point;
THENCE North 69° 15' West 190 ft. to a point;
THENCE South 20° 45' West 190 ft. to a point;
THENCE South 69° 15' East 190 ft. to a point;
THENCE South 28° 26' West 828 ft. to a point;
THENCE South 31° 50' West 770 ft. to a point;
THENCE South 0° 12' West 3170 ft. to a point;
THENCE North 89° 48' West 200 ft. to a point;
THENCE South 0° 12' West 470 ft. to a point;
THENCE South 89° 48' East 460 ft. to a point ;
THENCE North 0° 12' East 200 ft. to a point;
THENCE North 89° 48' West 210 ft. to a point;
THENCE North 0° 12' East 1240 ft. to a point;
THENCE North 89° 15' East 460 ft. to a point;
THENCE North 0° 45' West 190 ft. to a point;
THENCE North 89° 15' East 1000 ft. to a point;
THENCE North 47° 10' East 360 ft. to a point;
THENCE North 61° 50' East 340 ft. to a point;
THENCE North 74° 00' East 255 ft. to a point;
THENCE North 730 ft. to a point;
THENCE East 1475 ft. to a point;
THENCE South 220 ft. to a point;
THENCE East 210 ft. to a point;
THENCE North 220 ft. to a point;
THENCE East 90 ft. to a point;
THENCE North 58° 00' East 450 ft. to a point;
THENCE South 14° 30' East 300 ft. to a point;
THENCE South 75° 30' West 100 ft. to a point;
THENCE South 14° 30' East 170 ft. to a point;
THENCE North 75° 30' East 200 ft. to a point;
THENCE North 14° 30' West 170 ft. to a point;
THENCE South 75° 30' West 70 ft. to a point;
THENCE North 14° 30' West 350 ft. to a point;
THENCE South 58° 00' West 480 ft. to a point;
THENCE West 1630 ft. to a point;
THENCE North 240 ft. to a point;
THENCE West 250 ft. to a point;
THENCE South 240 ft. to a point;
*192THENCE East 85 ft. to a point;
THENCE South 730 ft. to a point;
THENCE South 74° 00' West 230 ft. to a point;
THENCE South 61° 50' West 350 ft. to a point;
THENCE South 47° 10' West 360 ft. to a point;
THENCE South 89° 15' West 1440 ft. to a point;
THENCE North 0° 12' East 930 ft. to a point;
THENCE South 89° 48' East 200 ft. to a point;
THENCE North 0° 12' East 200 ft. to a point;
THENCE North 89° 48' West 200 ft. to a point;
THENCE North 0° 12' East 830 ft. to a point;
THENCE North 24° 58' East 160 ft. to a point;
THENCE North 31° 50' East 420 ft. to a point;
THENCE South 58° 10' East 180 ft. to a point;
THENCE North 31° 50' East 170 ft. to a point ;
THENCE North 58° W West 180 ft. to a point ;
THENCE North 28° 26' East 850 ft. to a point;
THENCE North 20° 45' East 670 ft. to a point;
THENCE North 23° 55' East 800 ft. to a point;
THENCE North 45° 0V East 330 ft. to a point;
THENCE North 72° 20' East 325 ft. to a point;
THENCE South 56° 40' East 180 ft. to a point;
THENCE North 33° 20' East 180 ft. to a point;
THENCE North 56° 40' West 180 ft. to a point;
THENCE North 33° 20' East 670 ft. to a point;
THENCE North 36° 05' East 80 ft. to a point;
THENCE South 53° 55' East 190 ft. to a point;
THENCE North 36° 05' East 190 ft. to a point;
THENCE North 53° 55' West 190 ft. to a point;
THENCE North 36° 05' East 200 ft. to a point.
THENCE South 53° 55' East 190 ft. to a point.
THENCE North 36° 05' East 190 ft. to a point.
THENCE North 53° 55' West 190 ft. to a point;
THENCE North 36° 05' East 130 ft. to a point.
THENCE South 53° 55' East 190 ft. to a point.
THENCE North 36° 05' East 225 ft. to a point;
THENCE North 23° 50' East 130 ft. to a point;
THENCE North 66° 10' West 190 ft. to a point;
THENCE North 24° 05' East 391 ft. to a point;
THENCE South 82° 0' East 190 ft. to a point ;
THENCE North 8° 0' East 190 ft. to a point;
*193THENCE North point; 82° O' West 190 ft. to a
THENCE North point; 8° O' East 85 ft. to a
THENCE North point; 9° 45' West 520 ft. to a
THENCE North point; 22° 00' West 610 ft. to a
THENCE North point; 16° 00' West 760 ft. to a
THENCE North point; 88° 00' East 90 ft. to a
THENCE South point; 2° 00' East 190 ft. to a
THENCE North point; 88° 00' East 190 ft. to a
THENCE North point; 2° 00' West 190 ft. to a
THENCE North point; 88° 00' East 440 ft. to a
THENCE South point; 88° 00' East 410 ft. to a
THENCE South point; 2° 00' West 190 ft. to a
THENCE South point; 88° 00' East 190 ft. to a
THENCE North point; 2° 00' East 190 ft. to a
THENCE South point; 88° 00' East 670 ft. to a
THENCE North point; 52° 00' East 100 ft. to a
THENCE South point; 74° 40' East 190 ft. to a
THENCE North point; 15° 20' East 190 ft. to a
THENCE North point; 74° 40' West 190 ft. to a
THENCE North point; 24° 10' East 195 ft. to a
THENCE point; North 48° 45' East 190 ft. to a
THENCE point; North 41° 15' West 200 ft. to a
THENCE point; South 48° 45' West 190 ft. to a
THENCE point; South 41° 15' East 170 ft. to a
THENCE point; South 24° 10' West 200 ft. to a
THENCE point; South 15° 20' West 190 ft. to a
THENCE point; South 52° 00' West 70 ft. to a
THENCE point ; North 88° 00' West 430 ft. to a
THENCE point; North 2° 00' East 250 ft. to a
THENCE point; North 88° 00' West 190 ft. to a
THENCE point; South 2° 00' West 250 ft. to a
THENCE point ; North 88° 00' West 650 ft. to a
THENCE point; South 87° 34' West 726 ft. to a
THENCE point; North 18° 45' West 440 ft. to a
THENCE point; North 71° 15' East 190 ft. to a
THENCE point; North 18° 45' West 190 ft. to a
THENCE point; South 71° 15' West 190 ft. to a
THENCE point ; West 18° 45' West 730 ft. to a
THENCE point; North 4° 50' West 470 ft. to a
THENCE point; North 1° 05' West 840 ft. to a
*194THENCE North 5o 21' West 1009 ft. to a point;
THENCE North 520 ft. to a point;
THENCE East 210 ft. to a point;
THENCE North 190 ft. to a point;
THENCE West 210 ft. to a point;
THENCE North 17° 15' East 170 ft. to a point;
THENCE North 45° 00' East 480 ft. to a point ;
THENCE South 86° 15' East 150 ft. to a point;
THENCE South 58° 50' East 135 ft. to a point;
THENCE South 79° 30' East 205 ft. to a point;
THENCE North 76° 20' East 480 ft. to a point;
THENCE South 110 ft. to a point;
THENCE East 210 ft. to a point;
THENCE North 190 ft. to a point;
THENCE West 210 ft. to a point;
THENCE South 50 ft. to a point;
THENCE South 76° 20' West 470 ft. to a point;
THENCE North 79° 30' West 200 ft. to a point ;
THENCE North 58° 50' West 150 ft. to a point;
THENCE North 86° 15' West 135 ft. to a point;
THENCE North 45° 0' East 80 ft. to a point;
THENCE East 190 ft. to a point;
THENCE North 190 ft. to a point;
THENCE West 190 ft. to a point;
THENCE North 16° 25' West 140 ft. to a point;
THENCE North 64° 35' East 180 ft to a point;
THENCE North 45° 40' East 70 ft. to a point;
THENCE North 210 ft. to a point;
THENCE West 210 ft. to a point;
THENCE South 190 ft. to a point;
THENCE East 180 ft. to a point;
THENCE South 45° 40' West 50 ft. to a point;
THENCE South 64° 35' West 220 ft. to a point;
THENCE South 16° 25' East 200 ft. to a point;
THENCE West 270 ft. to a point;
THENCE South 200 ft. to a point;
THENCE East 200 ft. to a point;
THENCE South 44° 16' West 504 ft. to a point;
THENCE South 14° 14' West 150 ft. to a point;
THENCE South 730 ft. to a point;
THENCE North 89° 32' West 1620 ft. to a point;
THENCE North 35° 20' East 690 ft. to a point;
THENCE North 25° 20' East 180 ft. to a point;
THENCE North 08° 00' East 140 ft. to a point;
THENCE North 00° 50' East 375 ft. to a point ;
THENCE North 4° 45' West 810 ft. to a point;
THENCE South 88° 40' East 965 ft. to a point;
THENCE North 1° 20' East 210 ft. to a point;
*195THENCE North 88° 40' West 180 ft. to a point; t
THENCE South Io 20' West 180 ft. to a point;
THENCE North 88° 40' West 460 ft. to a point ;
THENCE North Io 20' East 180 ft. to a point;
THENCE North 88° 40' West 190 ft. to a point;
THENCE South Io 20' West 180 ft. to a point;
THENCE North 88° 40' West 140 ft. to a point;
THENCE North 20° 20' West 150 ft. to a point;
THENCE North 88° 15' West 270 ft. to a point;
THENCE North Io 45' East 210 ft. to a point;
THENCE North 88° 15' West 190 ft. to a point
THENCE South Io 45' West 210 ft. to a point;
THENCE North 88° 15' West 370 ft. to a point;
THENCE North Io 45' East 180 ft. to a point;
THENCE North 88° 15' West 180 ft. to a point;
THENCE South Io 45' West 210 ft. to a point;
THENCE South 88° 15' East 1000 ft. to a point;
THENCE South 20° 20' East 120 ft. to a point;
THENCE South 4° 45' East 850 ft. to a point;
THENCE South 0° 50' West 365 ft. to a point;
THENCE South 8° 00' West 125 ft. to a point;
THENCE North 64° 40' West 175 ft. to a point;
THENCE South 25° 20' West 190 ft. to a point;
THENCE South 64° 40' East 175 ft. to a point;
THENCE South 35° 307 West 697 ft. to a point;
THENCE North 89° 32' West 5244.4 ft. to a point;
THENCE North 83° 37' West 4544.4 ft. to a point, same being the POINT OF BEGINNING and containing 127.4 acres of land, more or less.
CERTIFICATE
This is to certify that the foregoing perimeter description of the Town of Domino, Texas, was prepared in my office, under my supervision, and is true and correct to the best of my knowledge and belief
MURRAY ENGINEERING COMPANY
P. O. BOX 3786, TEX-ARKANA, TEXAS
/s/ Herbert L. Murray
Herbert L. Murray, P. E.
Reg. Engineer — Texas 20610”
There were some signatures after the “Field Notes”. Then a plat of the proposed town of Domino, Texas, was attached and shows the size and shape of the proposed town or village. It is published here and made a part hereof.
*196
I presume the record shows that the surveyors, as they followed the highways and roads would inquire if the inhabitants on the highway and roads would vote “for” or “against” the incorporation. If the voter indicated that they would vote “against” the incorporation, they were surveyed outside the proposed town of Domino. One man received two write-in votes for commissioner and the votes were refused to be counted because this man had been surveyed outside the proposed town of Domino.
Do the boundaries as surveyed for the proposed town of Domino actually compose a “town” or “village”? A “town” is described in Webster’s Dictionary as:
“A collection of houses, larger than a village; in a general sense, a city or borough; often used in opposition to Country, in which case it is preceded by the definite article.
“The term is often used absolutely, and without the proper name of the particular place, to denote the metropolis, county, town, or a particular city, in which, or in the vicinity of which the speaker or writer is; as, to live in town; to go to town; to be in town. In this usage in England, London is the town particularly referred to in most cases”.
*197A “village” is described as:
“A small assemblage of houses, less than a town or city, and larger than a hamlet; also, collectively, the villagers; as the village rose to a man”.
A City is described as:
“1. In a general sense, a large town; a large number of houses and inhabitants, established in one place.
2. Specifically, a corporate town; a town or collective body of inhabitants, incorporated and governed by particular officers, as a mayor and aldermen. This is the sense of the word in the United States. In Great Britain, a borough or town corporate, which is or has been the seat of a bishop, or the capital of his see, is called a city.
3. The collective body of citizens, or the inhabitants of a city; as, the city voted to establish a market.” (Emphasis added).
A careful examination of the plat of the proposed town of Domino will reveal that there is only one place large enough to build but one building, and that is on U. S. Highway No. 59. I will not speculate what kind of business building will be built there; or, if there will be any other election if the town of Domino is incorporated.
The description of the proposed town of Domino does not describe a “town”, “village” or “City”. If the incorporation is permitted to stand, the name should be changed to “Stringtown”.
The appellees admitted themselves out of Court when they offered in evidence as their “Exhibit No. 1”, “Appellant’s First Amended Answer”. Omitting the number and style of the case, it reads as follows:
“DEFENDANT’S FIRST AMENDED ORIGINAL ANSWER
TO THE HONORABLE JUDGE OF SAID COURT:
“Now comes Tom N. Cope, Defendant herein and files this his First Amended Answer to the Plaintiff’s Petition for Mandamus and would show unto the Court that the Plaintiff’s Petition for Mandamus should be denied and that no writ of Mandamus should issue for the following reasons:
1.
“The Petition was filed at a time when the Defendant was under no legal obligation and had no legal duty to grant the Plaintiffs the relief sought by Mandamus.
2.
“The Plaintiffs have another plain, effective and adequate remedy to obtain the relief sought.
3.
“The act performed by the Defendant was an act involving judicial discretion.
4.
“The Defendant denies each and every, all and singular the material allegations contained in the Plaintiffs’ Petition and demands strict proof thereof; and Defendant further demands that all issues of fact be tried before a jury in the manner prescribed by law.
“WHEREFORE, the Defendant prays that the above entitled and numbered cause be placed upon the jury docket of this Honorable Court and that upon final hearing, the Plaintiffs’ Petition for Mandamus be in all things denied; that the Plaintiffs have nothing by their suit; that the Defendant have his cost of suit and such other and further relief at law or in equity to which he may show himself justly entitled.
Respectfully submitted
/s/ Neal Birmingham
Neal Birmingham
“I, Neal Birmingham, have read the above and foregoing page of typewritten material and state on my oath that each *198and every statement therein contained is true and correct.
/s/ Neal Birmingham
Neal Birmingham
“STATE OF TEXAS \ COUNTY OF CASS j
“SWORN TO AND SUBSCRIBED before me, by Neal Birmingham on this the 21st day of November, 1969. To certify which witness my hand and seal of office.
/s/ Ruby Dowd
Notary Public in and for Cass County, Texas”
(SEAL)
When appellees offered that into evidence for all purposes, they became bound by every fact alleged therein. Lock v. Morris (Tex.Civ.App.1956) 287 S.W.2d 500, w. r., n. r. e.
Appellees admitted that the burden was upon them to prove their case. They put on only two witnesses. Calvin W. Wesch and Howard W. Willingham. Neither of these witnesses testified to any facts that would prove that the town of Domino, Texas, had been duly incorporated. They did not offer into evidence the petition of the appellees, nor the order of appellant calling the election. They did not offer into evidence the fact that the notices were posted as required by the statutes and the returns were made thereon. They did not actually offer into evidence the number of the votes cast, nor the description or plat of the proposed town of Domino, Texas. I believe all this proof is essentially necessary to prove the incorporation of the town of Domino, Texas, on a petition filed more than 20 days after the election before the District Judge would have jurisdiction to grant a writ of mandamus.
I think the description of the proposed Town of Domino presents a fundamental error. It is our duty to search for fundamental error when the point is not raised or briefed. 4 T.J.2d 127, Sec. 612; Risinger v. First State Bank (Tex.Civ.App.1928) 12 S.W.2d 242, n. w. h.; Brown v. Spector (Tex.Civ.App.1934) 70 S.W.2d 478, n. w. h.; Judd v. Wyche (Tex.Civ.App.1935) 80 S.W. 2d 808, n. w. h.; Cook v. Nacogdoches County (Tek.Civ.App.1941) 147 S.W.2d 943, er. dis. jud. cor. The description of the proposed town of Domino does not describe a “town”. It merely makes a survey of the highways and roads. The taxpayers of Domino could be put to an enormous and outrageous expense in keeping up the highways, building more highways and public roads, because that automatically becomes their duty. Certain interested persons could take legal action against the Texas Highway Department and the Commissioners Court of Cass County to prevent them from spending any State and County tax money to build and maintain the highways and public roads within the described City of Domino, Texas.
Although appellant did not raise the fundamental point of error in his original brief, nor raise a point of error that an election had been held in the same area within one year, but he can do so in a supplemental brief, or in his motion for rehearing. Perkins v. Ingalsbe, 1961, 162 Tex. 456, 347 S.W.2d 926. On fundamental error, see, also, 4 T.J.2d 166, Sec. 658, and cases cited under Note 14, p. 168; 4 T.J.2d 430, Sec. 869 and cases cited under note 19.
By points one and two, appellant says the trial court erred in concluding, as a matter of law, that the appellees had no other plain, effective and adequate remedy to obtain the relief sought; and, in not dismissing the appellees petition because of the existence of another plain, effective and adequate remedy, other than by Mandamus. Let me express again that this election to incorporate a town is a “Special Election” as provided by the statutes. This being a “Special Election”, the cases cited in the opinion of this court are not applicable. In each case cited, only the County Judge took any action and the commissioners were not brought into the picture, as in the case at *199bar. In the case of Perkins v. Ingalsbe, 1961, 162 Tex. 456, 347 S.W.2d 926, the County Judge called an election and attempted to set it aside.
There is a conflict between Arts. 1.02 and 8.29a of the Election Code and Art. 1139, Title 28, Cities, Town and Villages.
Art. 1.02, Elec.Code, reads as follows:
“ART. 1.02 County Judge failing to act
“Whenever, by this title, any duty is devolved upon a county judge, and that office is vacant, or such officer from any cause fails to perform such duty, any two (2) or more of the county commissioners of the county may and shall perform such duty.” (Emp. added).
Art. 8.29a, Elec.Code, reads, in part, as follows:
“Art. 8.29a Returns of other elections
“When some other statute regulating the conduct of a specific type of election provides the procedure for making returns of the election, for canvass of the returns, or for custody and disposition of the voted ballots, those provisions shall govern such matters in the conduct of the election. In the absence of such other law, the provisions of this Code applicable to elections held by the county, as modified by this section, shall govern such matters for all elections held by cities, school districts, and other political subdivisions of this state, insofar as these provisions can be made applicable, and references in this Code to the county judge, commissioners court, and the county clerk shall be deemed to mean the appropriate officer or board, as herein provided, for the type of election involved. * * * ” (Emphasis added)
Art. 1139, Returns, reads as follows:
“Art. 1139 (1040-41) Returns
“If a majority of the votes are cast in favor of incorporation the officers holding the election shall make return thereof to the county judge within ten days after the same was held. The county judge shall, within twenty days after the receipt thereof make an entry upon the records of the commissioners court that the inhabitants of the town or village are incorporated within the boundaries thereof; which boundaries shall also be designated in the entry. A certified copy of such entry, together with the plat of the town or village, shall thereupon be recorded in the proper record of deeds of such county.”
There is a History, Status, and Function of Cities, Town and Villages that actually precedes “Title 28, Cities, Towns and Villages” by Hon. Trueman O’Quinn, Attorney at Law, Austin, Texas, that every citizen of Texas should read. It begins under the Spanish and Mexican rule and makes a very scientific History of the Status and Functions of Incorporated Cities from 1836 down to date. Any person with an open mind, after reading this article, would realize that all the highways and country roads could be incorporated for unreasonable and illegal purposes; provided, those living in the incorporated city were not bound to pay the necessary taxes to build, maintain and keep them in first class condition.
I do not believe that Arts. 1155 and 1187, V.A.S., has anything to do with the incorporation of the proposed town of Domino, Texas. Neither do I believe that the Texas Constitution and the Texas Legislature intended to make any provisions for the in-corporations of any cities, towns or villages just along the highways and public roads, as was done in this case. The very purpose of a writ of Mandamus is to supply defects in justice. It does not supersede legal remedies. Nelson v. Pickett (Tex.Civ.App.1960), 332 S.W.2d 129, Mand. overruled; 78 A.L.R.2d 1215. The writ of Mandamus is an extraordinary process, the offspring of necessity, arising from a failure of the law to furnish a remedy commensurate with the exigencies of the case. It must be the last resort of the relator. *20037 T.J.2d 599, Sec. 12, and the many cases cited thereunder. I would affirm points one and two.
By his third point, appellant says the trial court erred in denying him a right to a trial by a jury. Since it is the well known law of Texas that State, or either of its subsidiaries; a county, or any of its officers in an official capacity; a city, town, village or school district are required to post costs or give appeal bonds, surely Judge Tom N. Cope, in his official capacity as county judge would not, in a case like this, be required to give ten days notice and pay a jury fee to get the case tried before a jury. The law is -so well settled there is no need to cite authorities. Electra Independent School District v. W. T. Waggoner Estate (Tex.Civ.App.1943), 168 S.W. 2d 645, n. w. h.
Appellees approached Judge Cope on Monday, November 3, 1969, (the second day after the proposed election was held) and demanded that he enter an order declaring the town of Domino, Cass County, Texas, duly and legally incorporated. Appellant refused to enter the order and told them that he would call the commissioners into a special meeting on Friday, Nov. 7, 1969. Appellees prevailed upon him to call it earlier. Appellant then called the commissioners for a special meeting for Thursday, Nov. 6, 1969. All four commissioners were present. Some of the appellees were there, as well as Howard W. Willingham. Appellant still refused to sign the order. But no one inquired of either of the commissioners as to whether or not two or more of them would sign the order. Without waiting the full 20 days, appellees filed this suit on Nov. 10, 1969. The trial judge set the case for hearing on Nov. 17, 1969. Under the direction of the District Judge, appellant filed a form of an answer on or before the 17th day of November, 1969, and on that day the case was continued until Nov. 26, 1969. There were certain questions of fact to be found and appellant was entitled to a trial before a jury. The questions of fact are: Could the appellees incorporate the highways and public roads into an incorporated town? Could the ap-pellees file their suit prior to 20 days after the election return was presented to appellant ? Was appellant entitled to Monday after the expiration 20 days after service of notice in which to file his answer? I think the trial court clearly abused his discretion in forcing appellant to trial and in denying him a jury. 35 T.J.2d 66, Sec. 30, and the cases cited thereunder. I would sustain point three.
COMMENT
The appellant filed a Supersedeas Bond in the amount of $500,00 plus an appeal bond. The appellees filed a motion to require him to file an amended Supersedeas Bond in the amount of $69,000.00. The motion was overruled. Appellees alleged that it was necessary to file a Supersedeas Bond in an amount large enough so they could recover any damages that might be caused them in the event the Town of Domino, Texas, was incorporated and they could not borrow the money to install water lines and gas lines in the City of Domino. Such allegations are untrue. There are millions of people in Texas, who live outside the city limits of any city, town or village that have running (pure) water in their houses, natural gas piped into the same, electricity to light their homes and to use as they see fit, and telephone service. The incorporation of the highways and public roads into the “Town of Domino, Cass County, Texas” is wholly unnecessary.
The trial court clearly committed an error in prematurely ordering the appellant to show cause why a writ of mandamus should not be issued against him. The case was prematurely filed, the case was not proved and the appellees could have requested at least 3 of the commissioners to sign the order. I would sustain point 4.
I would reverse and dismiss the lawsuit.