REAVLEY, Justice.
When the county judge orders an election to be held upon the question of the incorporation of a town, and if he does so’ by determining the requisite number of inhabitants therein on his assumption of verity of the affidavits submitted by the applicants, may he effectively revoke that order upon discovering the affidavits to have been false? The trial court has ruled that the county judge retains his fact finding power after he enters his order and may revoke the order upon a subsequent rede-termination. The Court of Civil Appeals has held that the order, once it has been made, cannot be revoked. 481 S.W.2d 910. That judgment is here reversed. It is the view of the writer and three justices that if the order calling the election follows a determination of prerequisite fact by the county judge which would otherwise be final and if his determination and resulting order are based upon false affidavits, the county judge may rescind his order prior to the election.
This is a mandamus suit, brought to compel Honorable Tom Todd, County Judge of Denton County, to canvass the returns and declare the result of the election as to the incorporation of Corral City. On August 20, 1971, a petition was presented to Judge Todd which sought the incorporation of the town, and it was accompanied by an affidavit in which af-fiants stated that the 207 persons listed were inhabitants of the area proposed to be incorporated. The statutes require that there be more than 200 inhabitants and provide that “JiJf 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 . . . for the purpose of submitting the question to a vote of the people.” Arts. 1133, 1136, Vernon’s Ann.Civ. St.
Judge Todd made the order on August 20, which called the incorporation election for September 4. However, on August 26, ten affidavits were presented to him in which each affiant was shown to be included on the list of the 207 inhabitants of Corral City but thereupon swore that neither he nor any member of his household had ever resided in the area. On August 30, Judge Todd set aside his original order and then ordered that the election not be held.
The election was nevertheless held on September 4, .and the returns were tendered to the County Judge on September 10. When he refused to canvass them, this suit was brought to compel him to do so.
In his answer Judge Todd pleaded that he retained jurisdiction over his own order and that there was no lawful basis for the election since he determined that the area to be incorporated did not have more than 200 inhabitants. He also pleaded that the original order was obtained through fraud: that material misrepresentations were knowingly made that certain persons were inhabitants of the area, that this was done to get him to call the election, that he did not know the representations to be untrue and was induced thereby to call the elec[215]*215tion, and that he “would not have signed said order calling the incorporation election absent said false representations.”
The trial court granted a motion in lim-ine preventing Judge Todd from offering any evidence as to the actual number of inhabitants of the territory proposed to be incorporated. The proof was made by-stipulation, and this included a stipulation that the ten affidavits were filed with Judge Todd on August 26. The trial court made no determination as to the actual number of inhabitants or as to the allegations of Judge Todd that his order was obtained by the use of false affidavits. The conclusions of law made after judgment included this: “Respondent had power to revoke the election order at any time before the proceedings contemplated thereunder were finally consummated.”
The Court of Civil Appeals held that the order of August 20, “which set in motion the election process was final and conclusive” (481 S.W.2d 911) upon the authority of Perkins v. Ingalsbe, 162 Tex. 456, 347 S.W.2d 926 (1961).
In the Perkins case an attempt by a county judge to revoke his order calling an election was held to be ineffective, and he was compelled by mandamus to accept the election returns. However, there are two factors present here which were not present in Perkins. Judge Todd has alleged that fraudulent means were used to induce him to make the original order. Also, the determination of the requisite number of inhabitants in the area proposed to be incorporated is for the county judge to resolve, and his decision is conclusive. It was pointed out at two places in the Perkins opinion that the election order there had not been revoked because of any issue as to the number of inhabitants, and this court held that under the facts the county judge had no discretion but that his entry of an order calling the election was mandatory.
Questions pertaining to fixing the boundaries of the town are not for the county judge to decide. He may be compelled by mandamus to order an election even though he regards the area not to constitute a town, Reagan v. Beck, 474 S.W.2d 935 (Tex.Civ.App.1971, writ ref’d, n.r.e.); and the improper inclusion of farm land may be attacked by subsequent quo warranto action. Ewing v. State, 81 Tex. 172, 16 S.W. 872 (1891). On the other hand, the county judge is the one who decides the question of whether the number of inhabitants in an area complies with statutory requirements, and his decision cannot be dictated or attacked in court so long as he acts in good faith. State v. Goodwin, 69 Tex. 55, 5 S.W. 678 (1887) ; State v. Town of Clyde, 18 S.W.2d 202 (Tex.Civ.App.1929, writ ref'd); Wolf v. Young, 277 S.W.2d 744 (Tex.Civ.App.1955, writ ref’d n.r.e.); see School Board of City of Marshall v. State, 162 Tex. 9, 343 S.W.2d 247 (1961); Scarborough v. Eubank, 93 Tex. 106, 53 S.W. 573 (1899); Boynton v. Brown, 164 S.W. 893 (Tex.Civ.App. 1914, writ ref’d).
The general rule is stated in the Perkins case that when a petition complies with the statutory requirements and vests the county judge with jurisdiction to order the election, he may not interfere with the election process by attempting to revoke his order. Furthermore, if the order calling the election cannot be set aside, the canvassing of the votes is a ministerial act which may be obtained by mandamus. Grant v. Ammerman, 437 S.W.2d 547 (Tex.1969). The Perkins opinion quotes from Cameron v. Baker, 13 S.W.2d 119, 120 (Tex.Civ.App.1929, no writ) where it is said that the power to issue ex parte orders to election judges “would be a dangerous power lodged in the hands of a county judge. . . .” However, the misdeeds of applicants for an election should not be entitled to the protection of this rule, and an order obtained by false affidavits should not be beyond revocation. It would be a strange law that made the bad faith of the county judge a ground of attack upon his order but which placed beyond [216]
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REAVLEY, Justice.
When the county judge orders an election to be held upon the question of the incorporation of a town, and if he does so’ by determining the requisite number of inhabitants therein on his assumption of verity of the affidavits submitted by the applicants, may he effectively revoke that order upon discovering the affidavits to have been false? The trial court has ruled that the county judge retains his fact finding power after he enters his order and may revoke the order upon a subsequent rede-termination. The Court of Civil Appeals has held that the order, once it has been made, cannot be revoked. 481 S.W.2d 910. That judgment is here reversed. It is the view of the writer and three justices that if the order calling the election follows a determination of prerequisite fact by the county judge which would otherwise be final and if his determination and resulting order are based upon false affidavits, the county judge may rescind his order prior to the election.
This is a mandamus suit, brought to compel Honorable Tom Todd, County Judge of Denton County, to canvass the returns and declare the result of the election as to the incorporation of Corral City. On August 20, 1971, a petition was presented to Judge Todd which sought the incorporation of the town, and it was accompanied by an affidavit in which af-fiants stated that the 207 persons listed were inhabitants of the area proposed to be incorporated. The statutes require that there be more than 200 inhabitants and provide that “JiJf 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 . . . for the purpose of submitting the question to a vote of the people.” Arts. 1133, 1136, Vernon’s Ann.Civ. St.
Judge Todd made the order on August 20, which called the incorporation election for September 4. However, on August 26, ten affidavits were presented to him in which each affiant was shown to be included on the list of the 207 inhabitants of Corral City but thereupon swore that neither he nor any member of his household had ever resided in the area. On August 30, Judge Todd set aside his original order and then ordered that the election not be held.
The election was nevertheless held on September 4, .and the returns were tendered to the County Judge on September 10. When he refused to canvass them, this suit was brought to compel him to do so.
In his answer Judge Todd pleaded that he retained jurisdiction over his own order and that there was no lawful basis for the election since he determined that the area to be incorporated did not have more than 200 inhabitants. He also pleaded that the original order was obtained through fraud: that material misrepresentations were knowingly made that certain persons were inhabitants of the area, that this was done to get him to call the election, that he did not know the representations to be untrue and was induced thereby to call the elec[215]*215tion, and that he “would not have signed said order calling the incorporation election absent said false representations.”
The trial court granted a motion in lim-ine preventing Judge Todd from offering any evidence as to the actual number of inhabitants of the territory proposed to be incorporated. The proof was made by-stipulation, and this included a stipulation that the ten affidavits were filed with Judge Todd on August 26. The trial court made no determination as to the actual number of inhabitants or as to the allegations of Judge Todd that his order was obtained by the use of false affidavits. The conclusions of law made after judgment included this: “Respondent had power to revoke the election order at any time before the proceedings contemplated thereunder were finally consummated.”
The Court of Civil Appeals held that the order of August 20, “which set in motion the election process was final and conclusive” (481 S.W.2d 911) upon the authority of Perkins v. Ingalsbe, 162 Tex. 456, 347 S.W.2d 926 (1961).
In the Perkins case an attempt by a county judge to revoke his order calling an election was held to be ineffective, and he was compelled by mandamus to accept the election returns. However, there are two factors present here which were not present in Perkins. Judge Todd has alleged that fraudulent means were used to induce him to make the original order. Also, the determination of the requisite number of inhabitants in the area proposed to be incorporated is for the county judge to resolve, and his decision is conclusive. It was pointed out at two places in the Perkins opinion that the election order there had not been revoked because of any issue as to the number of inhabitants, and this court held that under the facts the county judge had no discretion but that his entry of an order calling the election was mandatory.
Questions pertaining to fixing the boundaries of the town are not for the county judge to decide. He may be compelled by mandamus to order an election even though he regards the area not to constitute a town, Reagan v. Beck, 474 S.W.2d 935 (Tex.Civ.App.1971, writ ref’d, n.r.e.); and the improper inclusion of farm land may be attacked by subsequent quo warranto action. Ewing v. State, 81 Tex. 172, 16 S.W. 872 (1891). On the other hand, the county judge is the one who decides the question of whether the number of inhabitants in an area complies with statutory requirements, and his decision cannot be dictated or attacked in court so long as he acts in good faith. State v. Goodwin, 69 Tex. 55, 5 S.W. 678 (1887) ; State v. Town of Clyde, 18 S.W.2d 202 (Tex.Civ.App.1929, writ ref'd); Wolf v. Young, 277 S.W.2d 744 (Tex.Civ.App.1955, writ ref’d n.r.e.); see School Board of City of Marshall v. State, 162 Tex. 9, 343 S.W.2d 247 (1961); Scarborough v. Eubank, 93 Tex. 106, 53 S.W. 573 (1899); Boynton v. Brown, 164 S.W. 893 (Tex.Civ.App. 1914, writ ref’d).
The general rule is stated in the Perkins case that when a petition complies with the statutory requirements and vests the county judge with jurisdiction to order the election, he may not interfere with the election process by attempting to revoke his order. Furthermore, if the order calling the election cannot be set aside, the canvassing of the votes is a ministerial act which may be obtained by mandamus. Grant v. Ammerman, 437 S.W.2d 547 (Tex.1969). The Perkins opinion quotes from Cameron v. Baker, 13 S.W.2d 119, 120 (Tex.Civ.App.1929, no writ) where it is said that the power to issue ex parte orders to election judges “would be a dangerous power lodged in the hands of a county judge. . . .” However, the misdeeds of applicants for an election should not be entitled to the protection of this rule, and an order obtained by false affidavits should not be beyond revocation. It would be a strange law that made the bad faith of the county judge a ground of attack upon his order but which placed beyond [216]*216everyone’s reach his action taken in good faith upon the strength of affidavits later found to be false. It would be a bad law to shun placing dangerous power in the county judge and then to vest fraudulent applicants with the power to evade the statutory requirement as to the number of inhabitants requisite to holding an election for incorporation of a town.
It has been held that an order calling an election to organize a county may be annulled upon discovery of fraud of the petitioners and that a court may then enjoin the election. Oden v. Barbee, 103 Tex. 449, 129 S.W. 602 (1910). An election process may be aborted by the county judge in the event an area to be incorporated encroaches upon prior territorial jurisdiction of another city. Beyer v. Templeton, 147 Tex. 94, 212 S.W.2d 134 (1948); Cf. Hills and Dales v. Reeves, 459 S.W.2d 672 (Tex.Civ.App.1970, writ dism’d).
The trial court judgment cannot be affirmed because we do not agree that the county judge can call an election and then change his mind about the number of area inhabitants for any reason of his choosing. The county judge has the duty to make his determination prior to the entry of his order calling the election; but, in doing so, he is entitled to rely upon affidavits submitted to him for that purpose if he has no cause to suspect or disbelieve the truth of those affidavits. If he discovers them to be false, four justices would hold that he may rescind his order. But whether the order may be rescinded or the canvass cannot be compelled, it follows that if Judge Todd should prove that he was induced to make his determination of the number of Corral City area inhabitants by false affidavits, no mandamus will issue.
The judgment of the Court of Civil Appeals is reversed; the cause is remanded to the trial court for trial.
Concurring opinion by WALKER, J., in which DANIEL and JOHNSON, JJ., join.
Dissenting opinion by POPE, J., in which GREENHILL, C. J., joins.