Sansom v. Mercer

Citations

• 68 Tex. 488
• 5 S.W. 62
• 1887 Tex. LEXIS 722

Syllabus

<p>1. Mandamus.—When the official act which an officer may perform involves the exercise of his judgment, his decision is not subject to revision by mandamus.</p> <p>2. Election—Mandamus. —In determining upon the sufficiency of an application of persons applying to the mayor of an incorporated city under the act of April 14, 1883, to order an election to restrict the limits of said city to an area embracing a diameter of one mile, the mayor must, before ordering the election, determine two facts: First, that there is a surplus of terrritory over the limits prescribed by the statute; and, second, that at least fifty qualified voters of that territory have signed the petition. If there be controversy as to the existence of these facts, his act in determining it, is one of judgment or discretion, and if he refuses the application he can not be compelled to order the election,</p> <p>3. Same.—If, under such circumstances, a writ of mandamus be applied for, to compel the mayor to order an election, and the petition states facts which, if true, would, under the statute, require him to do so, a general demurrer to the petition, relieves the ease of controversy by admitting the truth of the .allegation, .and since, in the absence of an answer to the merits, the act has thus become one purely ministerial, a peremptory mandamus should issue to compel his obedience to law.</p> <p>4. Oases Reviewed.—Arberry v. Beavers, 6 Texas, 457; The State v. The Commissioners, etc., 8 Nevada, 309; Gibbs v. Bartlett, 63 California, 117, reviewed.</p> <p>5. Election.—The act of April 14, 1883, which provides the manner in which the territorial limits of an incorporated city may he diminished, is not invalid because of its failure to prescribe a method for holding elections; being made a part of title seventeen of the Revised Statutes, the intention must he presumed that elections ordered under it should he held as other elections.</p> <p>6. Mandamus.—If the signers to a petition to restrict u