(a) The only method of testing the forfeiture by a candidate of his right to appear on the ballot is by quo warranto proceedings: Sec. 9, Chap. 88, General Laws, 1919, Regular Session, p. 144; Art. 3174 1/4b Vernon's 1922 supplement. (b) The state is a necessary party to a quo warranto proceeding: State v. Nelson, 170 S.W. 814; Pickett v. Abney, 84 Tex. 645, 19 S.W. 859; 32 Cyc., 1432; State v. Ryan, 125 Pac. (Utah), 666, 41 Utah 327; People v. Hanson, 290 Ill. 370, 125 N.E. 268; State v. Taylor, 208 Mo., 442, 106 S.W. 1023; 13 Ann. Cas., 1058; Porter v. People, 182 Ill. 516, 55 N.E. 349; Haupt v. Rogers, 170 Mass. 71, 48 N.E. 1080; Meehan v. Bachelder, 73 N.H. 113, 6 Ann. Cas., 462. (c) Only the Attorney General, District Attorney or County Attorney has the right to file a quo warranto proceeding, and such officer so filing such proceedings has the exclusive control thereof: Matthews v. State, 82 Tex. 577, 18 S.W. 711; Hunnicutt v. State, 75 Tex. 233, 12 S.W. 166; State v. Nelson, 170 S.W. 814; State v. Roach, 35 S.W. 86; People v. Hanson, 290 Ill. 370, 125 N.E. 268; State v. Taylor, 208 Mo., 442, 106 S.W. 1023, 13 Ann. Cas. 1058; Porter v. People, 182 Ill. 516, 55 N.E. 349; Haupt v. Rogers, 170 Mass. 71, 48 N.E. 1080; Meehan v. Bachelder, 73 N.H. 113, 6 Ann. Cas., 462; High's Ex. Leg. Rem., 509; 32 Cyc., 1432; Art. 368, Revised Civil Statutes.
Owings v. Speed, 18 U.S. 423; Dunning v. Roome, 6 Wend., 655; 15 Am. Eng. Encycl. Law, 1076, sub-div. 4; 1 Greenl. Ev. (14th ed.) secs. 304, 293; McIlhenny v. Binz, 80 Tex. 8; Picket v. Abney, 84 Tex. 645. BROWN, ASSOCIATE JUSTICE.
Miller cites no authority for his argument that the evidence conclusively established that the Directors' Consent was a mistake. He concedes in his reply brief that corporate records are prima facie evidence of the facts stated therein, citing Pickett v. Abney, 84 Tex. 645, 19 S.W. 859 (1892), and McIlhenny v. Binz, 80 Tex. 1, 13 S.W. 655 (1890). Nevertheless, he argues that "it makes sense that a mistaken factual recitation is not competent evidence of the fact mistakenly recited."
While the minutes and records are the best evidence of the official acts of a board, and usually are the only proper evidence of it, parol evidence is admissible where facts are omitted from or are not truly stated by the record of what was done. 78 C.J.S. Schools and School Districts § 125; Hildebrand, Corporations, § 538; Mecom v. Ford, 113 Tex. 109, 252 S.W. 491; Pickett v. Abney, 84 Tex. 645, 19 S.W. 859. After the Board voted for annexation on February 27 and adjourned, the action became final and could not be rescinded at a subsequent meeting.
This, under the constitutional provision noted above, must be done by the Attorney General of the state. State v. Railway Co., 89 Tex. 562, 35 S.W. 1067; State v. Railway Co., 55 Tex. 76; Oriental Oil Co. v. State, 135 S.W. 722; Western Union Tel. Co. v. State, 121 S.W. 194; Brady v. Brooks, 99 Tex. 366, 89 S.W. 1052; Pickett v. Abney, 84 Tex. 645, 19 S.W. 859. But if a corporation undertakes to engage in or pursue the business of selling intoxicating liquors without having procured the necessary license and paid the taxes required by law, it then becomes the creator and promoter of a public nuisance, and, to abate this nuisance, the county attorney, in behalf of the state, may prosecute a suit. It may be that as an incident to the abatement of the nuisance a corporation will be restrained from exercising powers not authorized by law, but this is incidental merely to the suit.
Jesup v. Illinois Central R. Co., 43 Fed., 483, 499, 500. That corporate acts may be proved or established by parol, where omitted from the minutes, see Fort Worth Publishing Co. v. Hitson, 80 Tex. 216; Kelley v. Collier, 11 Texas Civ. App. 353[ 11 Tex. Civ. App. 353]; Pickett v. Abney, 84 Tex. 647 [ 84 Tex. 647]. Hutcheson, Campbell Hutcheson, for defendant in error.
On the clause relating to failure of consideration, see Roane v. Ross, 84 Tex. 46. Evidence of failure of consideration without plea supported by affidavit is inadmissible. Pickett v. Abney, 84 Tex. 645; McCormick v. Slover, 15 S.W. Rep., 105. On clause that there is another suit pending in this State between the same parties, for the same cause of action: Leigh v. Wagenbuhr, 2 Posey's U.C., 295.