Richardson v. State , 199 S.W.2d 239 ( 1946 )

This is a quo warranto proceeding challenging the corporate existence ab initio of the town of Honey Springs and to oust appellants' mayor and several aldermen of the town for the alleged reasons that said town was never legally incorporated, in that, the area sought to be incorporated includes land that was not reasonably suited for town purposes; that the field notes designating the outside boundary lines of said town embraced and contained more than 1,280 acres of land, or more than two square miles of land. However, it is specifically alleged that in 1937 the incorporators attempted to incorporate the town as a town or village as provided by chapter 11, Title 28, Art. 1133, Vernon's Revised Civil Statutes. It is conceded that the statutory proceedings were performed by the incorporators.

In due order the inhabitants of the town of Honey Springs on March 31, 1937, petitioned the County Judge of Dallas County to forthwith make an order for the holding of an election for the purpose of submitting to the qualified voters within the defined territory, which was specifically described by metes and bounds, whether or not said town should be incorporated as a town having more than 400 inhabitants and having the metes and bounds as set out in the petition. The petition relates that the designated territory contains more than 400 inhabitants and less than 10,000 inhabitants and that said inhabitants desired to be incorporated as a town or village under the provisions of Art. 1133, Title 28, Revised Statutes of Texas and especially chapter 11 of said Title. In due time, the County Judge granted the petition and ordered the election. The election was held in accordance with the order; the majority of the voters voted at the election sustaining the petition, and the result of the election was declared by the County Judge. Thus the town was duly incorporated under the name of Honey Springs.

Subsequently, the municipality performed all governmental proceedings: elected a mayor and several aldermen, appointed a town marshal, secretary-treasurer; held periodical council meetings, passed ordinances, approved and paid bills against the corporation, granted easement franchise and, in much the same way as other towns of that class, the town functioned as an incorporated municipality. In 1945 the town council passed an ordinance accepting the provisions of Title 28, chapter 1, Art. 961, relating to cities and towns. The record here presents an agreement of the parties "that in April and May of 1937, there were within the boundaries of Honey Springs, Texas, more than 200 inhabitants and less than 2000 inhabitants." Thus it will be seen that the only conflict in this controversy is that the superficial area of the town at the time of its incorporation in 1937 exceeded two square miles.

On findings of the jury "that the town of Honey Springs as the same is described in the field notes of the outside boundary lines of said town, embraces and contains more than twelve hundred eighty acres of land," the trial court entered judgment of ouster against the municipality and officers terminating its corporate franchise for all purposes.

It will be seen from the majority opinion sustaining the judgment of the trial court that it is based on the affirmative answer of the jury that the town was incorporated with a superficial area of more than two square miles and prohibited by Art. 971, R.S. 1925, reading: "No city or town in this State shall be hereafter incorporated under the provisions of the general charter for cities and towns contained in this title with a superficial area of more than two square miles * * *." This prohibitive statute obviously may have successfully challenged the effectiveness of the corporate existence of Honey Springs ab initio (1937) if, in fact, the town had a superficial area of more than two square miles, but for the subsequent 1943 validating statute, chapter 381, 48th Leg., p. 688, that this validating statute has reference Art. 1134c, V.A.C.S. The majority holds only to the validation of such governmental proceedings of such towns and cities and not to the validation of boundary lines, hence the provision "constitutes no defense to the vice inherent in appellants' 1937 Act of incorporation; i.e., its prohibited inclusion of more than two square miles of territory." This brings us to the point of dissent.

"It is well settled as a rule of statutory construction in this State that it is proper to look to all parts of a legislative Act to ascertain its proper construction and meaning — that is, to ascertain the legislative intent. It is the legislative intent that is the law. In applying this rule courts will not look alone to one phrase, clause, or sentence of an Act, but to the entire Act; and this includes the caption, the body of the Act, and the emergency clause." Trawalter v. Schaefer, 142 Tex. 521, 179 S.W.2d 765, 767. So when we come to consider the body of this Act, we find that cities and towns "heretofore incorporated or attempted to be incorporated under the General Laws of Texas, Title 28, Revised Civil Statutes of Texas, 1925, and Senate Bill 144, passed by the Forty-seventh Legislature, Regular Session, 1941, whether under the aldermanic form of government or the commission form of government, and which have functioned as incorporated cities and towns since the date of such incorporation, are hereby in all respects validated as of the date of such incorporation or attemptedincorporation; and the incorporation of such cities and towns shall not be held invalid by reason of the fact that the election may have been ordered by the Commissioners Court instead of the County Judge, nor shall such incorporation be held invalid on account of irregularities in the petition for election, order of election, notice of election, returns of election, order declaring result of election, or other incorporation proceedings." (Italics mine.) To my mind the body of the Act makes provision (1) validating the incorporation of such cities and towns "in all respects," which includes boundaries when such cities and towns are "incorporated or attempted to be incorporated"; and (2) validating the governmental proceedings of such municipality incorporated or which hasattempted to be incorporated.

My conclusion of the dual or several purposes and intent of the Legislature in passing the validating statute is fortified by the caption and emergency clause of the Act. When we look to the caption we find that it states the dual and several purposes of the Act, "An Act validating the incorporation of such cities and towns * * * heretofore incorporated or attempted to be incorporated * * *; and validating the governmental proceedings performed by the governing bodies of such cities and towns since their incorporation or attempted incorporation, respectively; providing elections shall not be held invalid for certain reasons; * * *." Then when we look to the emergency clause the meaning of the Act and the intention of the Legislature become more pronounced. We find that it provides "that the corporate existence of a number of cities and townsand the validity of the indebtedness incurred and bonds issued by them are in danger creates an emergency * * *." Section 4. The above-quoted statements of the provision of the body of the Act and the provisions of the caption and emergency clauses, to my mind, express the intent of the Legislature to validate the corporate existence of cities and towns incorporated or which have attempted to be incorporated, as well as their governmental acts exercised in pursuance to their corporate existence.

Appellee concedes in pleadings that the city or town of Honey Springs, at least, attempted incorporation and the evidence is conclusive and uncontradicted that its governmental proceedings were performed and are now being performed by the governing body. So if, perchance, the field notes of the proposed town, as designated in the petition for incorporation, without an actual survey having been made, contain a superficial area, such now has been "in all respects" validated.

The other issues involved in this appeal seem to have been decided by the majority in favor of appellants' contention and not controlling in this appeal.

To the action of the majority affirming the action of the trial court ousting the municipality and its duly elected and qualified officials, and terminating the town's corporate existence, I respectfully dissent. The judgment of the court below should have been reversed and by this court rendered in favor of the appellants.