MR. JUSTICE GRIFFIN
delivered the opinion of the Court.
We are met at the threshold of this cause by respondent’s motion to affirm the judgment of the Court of Civil Appeals without consideration of the points of error raised by petitioner Perkins, on the ground that the three points of error contained in the application all have to do with the respondent’s power to revoke the election ordered, and were not assigned as error in the Court of Civil Appeals.
Petitioner, as appellant in the Court of Civil Appeals, assigned only one point of error, as follows:
“The Court erred in finding that Plaintiff alleged no acts or conduct on the part of Respondent sufficient in law to constitute such fraud or other ground as would authorize the Court to grant the Petition for Mandamus. The District Court clearly has such power under the facts alleged.”
This point was stated in the language of the judgment of the trial court sustaining the respondent’s plea in abatement and dismissing his suit. However, in his argument under this one point, petitioner raises and argues at length the County Judge’s lack of power to revoke his order. Under our previous holdings these arguments were sufficient to raise in the Court of Civil Appeals the points assigned in this Court. Fambrough v. Wagley, 1943, 140 Tex. 577, 169 S.W. 2d 478.
[458]*458We have examined petitioner’s motion for rehearing filed in the Court of Civil Appeals and find these points are raised therein.
We overrule respondent’s motion to affirm the judgment of the Court of Civil Appeals without consideration of points assigned in petitioner’s application.
This is an action for mandamus brought by petitioner against respondent in the District Court of Taylor County, Texas. The factual background is as follows: In compliance with the requirements of Art. 1134, Vernon’s Texas Civil Statutes, more than twenty duly qualified residents of the area to be incorporated as the town of Impact on February 1, 1960, filed their petition asking that an incorporation election be called by respondent, the County Judge of Taylor County, Texas. The boundaries of the proposed town were set out in the petition and it was accompanied by a plat showing the area proposed to be incorporated. On that same date respondent made and entered his order of election, and finding all the statutory requirements to have been met, set February 13, 1960, as the date of the election, fixed a place for holding the election, appointed a presiding judge, ordered notices posted, and complied with such other statutory requirements regarding such incorporation elections. The notices of election were in due form and posted on February 2, 1960, in the area of Impact, as provided by law. On February 11, 1960, respondent entered an order revoking the order of February 1, 1960, which ordered the election, and ordered that the election not be held.
Petitioner sought the mandamus to require the respondent to accept the returns, canvass the votes, and declare the results of the election held on February 13, 1960, to determine whether or not an area described as the town of Impact should be incorporated. Petitioner alleged that the election had carried favorably to the incorporation, and that respondent be required to accept, canvass the votes and declare the results of the election, and place an order of incorporation on the minutes of the Commissioners’ Court of Taylor County, Texas. Respondent filed a plea in abatement and a motion to dismiss petitioner’s cause. The trial court sustained both motions and dismissed the cause at petitioner’s cost. On appeal, the Court of Civil Appeals affirmed. 339 S.W. 2d 343.
In his answer to the petition for mandamus the respondent [459]*459sets out the facts which he relies on to prevent the issuance of the writ. On February 11, 1960, he had another hearing on the petition. Respondent there pled that on the original hearing of the petition for election, and at the time of the granting of the election order, he did not realize that the area sought to be incorporated was “such a small part of what is generally considered ‘North Park’ community in the metropolitan area of the city of Abilene; that the area of Impact was not so conditioned as to be subjected to municipal government,” nor used for strictly town purposes; that the attempt to incorporate, as shown by the facts of which he took judicial knowledge and of his own personal knowledge, was not actually a bonafide attempt to incorporate for town purposes, but was planned with the intent to bring about a local option election in the town of Impact, should the incorporation election pass.
Respondent says he put none of these reasons in his order of revocation, which he placed of record, but that he actually took all these facts and circumstances into consideration in his decision revoking the election. There was no evidence heard by the trial court. He sustained the plea in abatement and dismissed petitioner’s cause of action.
The order revoking the election recites six reasons for the order. None of these, however, are that the petition did not comply, in every respect, with Art. 1134, V.T.C.S.
The first question to be answered is: Did the County Judge have the power to revoke his election order and thus stop the election, so as to prevent those residents of Impact from expressing their preferences as to whether or not the area should be incorporated? We hold that because the petition was in due and legal form in compliance with the statutory requirements, and because the respondent had a hearing on the petition and found the statutory requisites present, and ordered the election and posted notices as required by law, it follows that the election process was lawfully put in motion and the County Judge could not prevent its being carried to its conclusion.
No contention is made that the petition for election did not contain the requisite number of qualified electors resident in the territory. Respondent contends that the action of the county judge in revoking the election order is final and conclusive. He relies on those cases holding that the original action of the county judge, either calling or refusing to call an election on [460]*460the presentation of a petition, is final and not reviewable in the absence of allegations of fraud. State ex rel. Burkett v. Town of Clyde, 1929, 18 S.W. 2d 202, wr. ref., is a quo warranto proceeding attacking the finding of the county judge in 1907 as to population. It was not a case involving an attempted revocation of an election order legally promulgated. The case was tried some 20 years after the election. The Town of Clyde case, speaking of the fraud necessary to permit an attack on the findings of the county judge, says:
“* * * Unquestionably the law will relieve from the effects of fraud. But even in such case the fraud sufficient to invalidate his [county judge’s] action must be such as is chargeable to the officer, and not merely fraud of others by which the officer is led into error. Word v. Schow, 29 Tex. Civ. App. 120, 68 S.W. 192.”
In the case of Arberry v. Beavers, 1851, 6 Tex. 457, a mandamus was sought to compel the county judge to canvass the returns from two voting boxes and declare the result of an election to determine whether Jefferson or Linden should be the county seat of Cass County, Texas.
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MR. JUSTICE GRIFFIN
delivered the opinion of the Court.
We are met at the threshold of this cause by respondent’s motion to affirm the judgment of the Court of Civil Appeals without consideration of the points of error raised by petitioner Perkins, on the ground that the three points of error contained in the application all have to do with the respondent’s power to revoke the election ordered, and were not assigned as error in the Court of Civil Appeals.
Petitioner, as appellant in the Court of Civil Appeals, assigned only one point of error, as follows:
“The Court erred in finding that Plaintiff alleged no acts or conduct on the part of Respondent sufficient in law to constitute such fraud or other ground as would authorize the Court to grant the Petition for Mandamus. The District Court clearly has such power under the facts alleged.”
This point was stated in the language of the judgment of the trial court sustaining the respondent’s plea in abatement and dismissing his suit. However, in his argument under this one point, petitioner raises and argues at length the County Judge’s lack of power to revoke his order. Under our previous holdings these arguments were sufficient to raise in the Court of Civil Appeals the points assigned in this Court. Fambrough v. Wagley, 1943, 140 Tex. 577, 169 S.W. 2d 478.
[458]*458We have examined petitioner’s motion for rehearing filed in the Court of Civil Appeals and find these points are raised therein.
We overrule respondent’s motion to affirm the judgment of the Court of Civil Appeals without consideration of points assigned in petitioner’s application.
This is an action for mandamus brought by petitioner against respondent in the District Court of Taylor County, Texas. The factual background is as follows: In compliance with the requirements of Art. 1134, Vernon’s Texas Civil Statutes, more than twenty duly qualified residents of the area to be incorporated as the town of Impact on February 1, 1960, filed their petition asking that an incorporation election be called by respondent, the County Judge of Taylor County, Texas. The boundaries of the proposed town were set out in the petition and it was accompanied by a plat showing the area proposed to be incorporated. On that same date respondent made and entered his order of election, and finding all the statutory requirements to have been met, set February 13, 1960, as the date of the election, fixed a place for holding the election, appointed a presiding judge, ordered notices posted, and complied with such other statutory requirements regarding such incorporation elections. The notices of election were in due form and posted on February 2, 1960, in the area of Impact, as provided by law. On February 11, 1960, respondent entered an order revoking the order of February 1, 1960, which ordered the election, and ordered that the election not be held.
Petitioner sought the mandamus to require the respondent to accept the returns, canvass the votes, and declare the results of the election held on February 13, 1960, to determine whether or not an area described as the town of Impact should be incorporated. Petitioner alleged that the election had carried favorably to the incorporation, and that respondent be required to accept, canvass the votes and declare the results of the election, and place an order of incorporation on the minutes of the Commissioners’ Court of Taylor County, Texas. Respondent filed a plea in abatement and a motion to dismiss petitioner’s cause. The trial court sustained both motions and dismissed the cause at petitioner’s cost. On appeal, the Court of Civil Appeals affirmed. 339 S.W. 2d 343.
In his answer to the petition for mandamus the respondent [459]*459sets out the facts which he relies on to prevent the issuance of the writ. On February 11, 1960, he had another hearing on the petition. Respondent there pled that on the original hearing of the petition for election, and at the time of the granting of the election order, he did not realize that the area sought to be incorporated was “such a small part of what is generally considered ‘North Park’ community in the metropolitan area of the city of Abilene; that the area of Impact was not so conditioned as to be subjected to municipal government,” nor used for strictly town purposes; that the attempt to incorporate, as shown by the facts of which he took judicial knowledge and of his own personal knowledge, was not actually a bonafide attempt to incorporate for town purposes, but was planned with the intent to bring about a local option election in the town of Impact, should the incorporation election pass.
Respondent says he put none of these reasons in his order of revocation, which he placed of record, but that he actually took all these facts and circumstances into consideration in his decision revoking the election. There was no evidence heard by the trial court. He sustained the plea in abatement and dismissed petitioner’s cause of action.
The order revoking the election recites six reasons for the order. None of these, however, are that the petition did not comply, in every respect, with Art. 1134, V.T.C.S.
The first question to be answered is: Did the County Judge have the power to revoke his election order and thus stop the election, so as to prevent those residents of Impact from expressing their preferences as to whether or not the area should be incorporated? We hold that because the petition was in due and legal form in compliance with the statutory requirements, and because the respondent had a hearing on the petition and found the statutory requisites present, and ordered the election and posted notices as required by law, it follows that the election process was lawfully put in motion and the County Judge could not prevent its being carried to its conclusion.
No contention is made that the petition for election did not contain the requisite number of qualified electors resident in the territory. Respondent contends that the action of the county judge in revoking the election order is final and conclusive. He relies on those cases holding that the original action of the county judge, either calling or refusing to call an election on [460]*460the presentation of a petition, is final and not reviewable in the absence of allegations of fraud. State ex rel. Burkett v. Town of Clyde, 1929, 18 S.W. 2d 202, wr. ref., is a quo warranto proceeding attacking the finding of the county judge in 1907 as to population. It was not a case involving an attempted revocation of an election order legally promulgated. The case was tried some 20 years after the election. The Town of Clyde case, speaking of the fraud necessary to permit an attack on the findings of the county judge, says:
“* * * Unquestionably the law will relieve from the effects of fraud. But even in such case the fraud sufficient to invalidate his [county judge’s] action must be such as is chargeable to the officer, and not merely fraud of others by which the officer is led into error. Word v. Schow, 29 Tex. Civ. App. 120, 68 S.W. 192.”
In the case of Arberry v. Beavers, 1851, 6 Tex. 457, a mandamus was sought to compel the county judge to canvass the returns from two voting boxes and declare the result of an election to determine whether Jefferson or Linden should be the county seat of Cass County, Texas. In discussing the power and authority of the county judge with regard to the election, the court said, “when he [the county judge] had exercised his judgment and finally disposed of the subject, his authority was fwncinis officio. By its exercise it was exhausted.”
A case directly in point, except it is a school case rather than a city or town case, is the case of Cameron, County Judge v. Baker, Tex. Civ. App., 1929, 13 S.W. 2d 119, no writ history. The school statutes applicable provided that an election should be called by a county judge, upon presentation of a proper petition, to determine whether or not a common school district should be incorporated as an independent school district. Upon such petition being presented to Cameron, as County Judge, he called an election for a certain day, ordered notices posted, and complied with other requisites of the statutes in holding such election. Three days before the time for holding the election, Cameron entered an order revoking his election order. This revocation order was not served until the election was in progress. The election was held, the proper returns made to the county judge and he refused to canvass the returns, declare the results and take proper steps to put the election into effect — as is the situation in our case. The trial court granted the mandamus requiring the county judge to canvass the returns, de[461]*461clare the results of the election and enter the proper order. On appeal the Court of Civil Appeals affirmed, saying:
“It would be a dangerous power lodged in the hands of a county judge to issue an ex parte order to election judges, while they are holding an election, to desist further action and proceed no further in the election, and no statute has ever granted such power to a county judge. The trial judge found that the law was fully complied with by the county judge, and that law provides for no authority to the county judge other than to call the election, canvass the returns of the election officers, and declare the results. [Citing school statutes 2757 and 2758 (1925)]. If the election be illegally held, the matter can be inquired into and settled by proper judicial tribunal on application of any tax-paying resident of the district. The authorities cited by appellant do not sustain his propositions, but the case cited of Ewing v. State ex rel. Pollard, 81 Tex. 172, 16 S.W. 872, tends to show a lack of authority in the county judge to cancel an order of election when once made and being carried into effect.”
On rehearing the Court said:
“The only power or authority given to the County Judge to pass upon the sufficiency of the petition for the incorporation of a common school district is to receive the petition therefor, and to determine the facts presented to him in support of such petition, before the order of election is given by him and notice thereof issued. His power then ceases until after the election, when he is empowered to canvass the returns and declare the result. He has no power to interfere in any manner with the election after he has issued his order for the election. The statute has not given him any authority over the election after he has once ordered it.”
Arts. 1133-1139, Vernon’s Texas Civil Statutes, contain the statutory provisions referring to the incorporation of an area such as Impact. Art. 1134 prescribes the mode of incorporation and the requisites of the petition seeking incorporation which must be presented to the county judge. Art. 1136 provides that “if satisfactory proof is made that the town or village contains the requisite number of inhabitants, the county judge shall make an order for holding an election * * Art 1139 requires that the returns of the election shall be made to the county judge within ten days, and that “the county judge shall, within twenty [462]*462days 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,” and the boundaries to be set out in such entry (emphasis added). There is no statutory provision giving the county judge any power of revocation of the election order.
The language of the statutes as to the actions of the county judge is mandatory. When the county judge is presented with a statutory petition, and proof satisfactory to him has been made that the territory sought to be incorporated contains the requisite number of resident qualified electors, then the county judge has no discretion as to whether or not he will call the election, but he must do so. If the county judge should refuse to call an election under these circumstances, he can be forced to do so by writ of mandamus. This is true whether his power to order the election be called judicial, administrative, or political. Obviously, if the county judge determines the territory sought to be incorporated is at that time a part of another incorporated city or town, the county judge would have no jurisdiction to order the election. Beyer v. Templeton, Tex. Civ. App., 1947, 208 S.W. 2d 692; affirmed, 1948, 147 Tex. 94, 212 S.W. 2d 134. Once the county judge is vested with jurisdiction by a petition complying with the statutory requirements and he has put in motion the election process, he cannot interfere with it or prevent the will of the electors being expressed by an attempted revocation of his election order. To sanction any such action would lead to a frustration of the will of the electors in an area sought to be incorporated.
In our case, after the county judge had revoked his order for the election, the City of Abilene initiated annexation proceedings by passing to first reading an ordinance annexing to Abilene this territory sought to be incorporated. This the city could not legally do so long as the election process initiated by the filing of the petition with "the county judge was not completed. City of El Paso v. State ex rel. Town of Ascarate, Tex. Civ. App., 1942, 209 S.W. 2d 989, wr. ref. If the county judge can revoke his order for the election then the City of Abilene can annex this territory and prevent further incorporation elections. After the election is held, the results declared, and the requisite statutory provisions complied with, the validity of incorporation may be attacked in a proper quo warranto proceeding.
The only case in point, cited by respondent to sustain his [463]*463action revoking the election order, is the case of Beyer v. Templeton, Tex. Civ. App., 1947, 208 S.W. 2d 692; affirmed, 147 Tex. 94, 212 S.W. 2d 134. In that case the county judge had no jurisdiction to order the election because the city of Dallas had initiated annexation proceedings prior to the filing of the petition with the county judge.
We have carefully read each case cited by respondent to sustain his order revoking the order of election. It would unduly lengthen this opinion to discuss them. With the exception of those we have noted, the others are all cases involving the original determination of the county judge on the petition presented to him and his original order of election. None of the cases involve the revocation of election order, and none apply the rule that there is no relief that may be had from the judge’s order revoking a prior election order.
Respondent next seeks to uphold the revocation order on the basis that the petition presented to him included only a part of the territory of the town of “North Park”, and therefore was not sufficient to entitle the signers thereof to an incorporation election. Respondent argues that because the petition presented described a little more than 47 acres as the area to be incorporated, and he found that this area was not all of the 691 acres in a triangular shape constituting the town or village of North Park, the petitioner was not entitled to have the election held and he, respondent, had power to revoke his election order. Respondent contends the larger area contains more residences than the 47 acres sought to be incorporated; that the larger community is vitally concerned in the matter of incorporation and should have a right to express its views with reference “to any incorporation proceeding which might be had within their community as a whole.” We have held he had no such power of revocation. Neither by authorities nor by statutes is he authorized to change the boundaries set out in the petition, or to make any determination as to the area. See the early case of State ex rel. Richardson v. Larkin, 1905, Tex. Civ. App., 90 S.W. 912, wr. ref., so holding.
The case of Ewing v. State ex rel. Pollard, 1891, 81 Tex. 172, 16 S.W. 872, 874, was a quo warranto proceeding. It was contended that the county judge (to whom a petition seeking to incorporate Oak Cliff had been presented) had the power to determine what the limits of the proposed corporation should be and that his action was conclusive of the question. After [464]*464pointing out that the statute expressly made it the duty of the county judge to inquire into and be satisfied that the proposed corporation contained the requisite number of inhabitants, the court said:
“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. From the nature of the case, the area occupied by a town or city is so marked by the aggregation of residences and appurtenant structures that it is always practicable to fix the boundaries so as not to include any territory not authorized to be embraced. With a just disposition to respect the rights of the owners of adjacent property, no body of petitioners need make such a mistake as to this matter as will imperil the validity of the act of incorporation.”
Respondent relies on the case of State ex rel. Wilkie v. Stein, Comm. App., 1930, 26 S.W. 2d 182. This holding of the Commission of Appeals was expressly approved by the Supreme Court. On original submission the opinion states that a municipal corporation cannot be created out of a portion of territory comprising an unincorporated town, but must include the entire town. However, on motion for rehearing, 36 S.W. 2d 698,1931, this holding is expressly modified and explained. In so explaining the court says:
“* * * The law gives to the qualified voters of the inhabitants of a town or village the right to fix the boundaries of the territory sought to be embraced in the proposed incorporated town or village. What territory shall, or shall not, be in-included, is a question of fact to be determined by the people immediately interested. * * * If the corporate limits of a town or village are adjusted in the reasonable exercise of the judgment of the voters, and the exclusion or inclusion of land, belonging to those who might object thereto, was not arbitrarily done, as for instance, for the purpose of exacting [465]*465revenues without a compensation, or to prevent inhabitants of a given territory from participating in the advantages of the incorporation, whose situation is such as to reasonably and conveniently entitle them to such advantage, then in such a case the courts would be without power to interfere. State ex rel. Simpson, Attorney General v. Village of Dover et al., 113 Minn. 452, 130 N.W. 74, 539; 43 C.J. p. 80, et seq.”
It should also be pointed out that the Stein case was a quo warranto suit attacking the validity of the incorporation after the election process had run its course. We hold that respondent had no right to revoke his election order on the ground that the boundaries of the proposed area to be incorporated did not include all of North Park. Under proper allegations and proof this matter might be raised in a quo warranto proceeding attacking the validity of the incorporation of Impact.
On the basis of our discussion of the questions controlling this cause we reverse the judgments of both courts below and remand the cause to the trial court with instructions to grant the mandamus prayed for.