Ryan v. Evans

Citations

• 49 Tex. 364

Syllabus

<p>Ordinances oe Constitutional Convention of 1869—Counties— Mandamus.—-The Constitutional Convention of 1868, August 26, passed an ordinance “creating the county of Webster” “out of portions o£ the counties of Fannin and Lamar,” and it was by the ordinance made the duty of the County Court of Fannin county, as soon as convenient after the passage of the ordinance, “to organize tiie said comity of Webster, by holding elections for the purpose of electing all county officers, or recommending suitable persons to the commander of the fifth military district to fill said offices.” The County Court recommended to said commander persons as suitable for said offices, but no action was taken thereon. The adjourned session of the convention took no further action on the subject, nor has any legislative action subsequently been had. The Constitutional Convention of 1875 made no mention of Webster county in its apportionments of the counties in the State. August 28,1876, proceedings were begun in the District Court of Fannin county for mandamus against the County Court of that county, to compel the organization of Webster county : Held—</p> <p>1. The non-action by the military commander of the district may bo considered as a disapproval of the ordinance.</p> <p>2. The failure of the convention, when again in session, to take further action, may be considered evidence of abandonment of the project.</p> <p>3. The declaration creating the existence of the county, but providing steps for its organization, did not, of itself, create the new county, so as to detach it from the old counties.</p> <p>4. The failure by the Constitutional Convention of 1875 to recognize said county, may be regarded as an authoritative condemnation of its existence.</p> <p>5. Hence it was not the clear duty of the County Court 6o act, and the mandamus was properly refused.</p>