This is a quo warranto proceeding brought by the Attorney General in the name of the State of Texas to have declared
We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court. We hold that even if the attempted incorporation of Impact in the first instance was void, the incorporation of the town has been validated by an act of the Legislature.
The qualified voters within the area known as Impact sought to incorporate under Article 1133 of Vernon's Annotated Civil Statutes which provides:
The evidence establishes that the area sought to be incorporated comprises 47.43 acres bounded on the west by the meanders of a creek and by an existing fence line which abuts a farming area and on the east by an existing street. The remaining boundaries extend to, but do not include, a right-of-way owned by the West Texas Utility Company and a settlement serviced by utilities from the City of Abilene.
In February of 1960, a count was made of all the buildings in an area known as North Park, which includes Impact. At the time of the counting there were 70 houses, 15 of which were vacant, within the boundaries of Impact. In the area outside of Impact and contiguous thereto, are located 348 more buildings of which 301 are houses, 5 are churches, 25 contain businesses and 17 are vacant. None of the area of North Park outside of Impact is incorporated nor is it within the city limits of the City of Abilene.
It is undisputed that in February of 1960 there were more than 200 people living within Impact, and of this number only 31 were qualified voters. Within the North Park Area and outside of Impact reside some 85 qualified voters exclusive of exemption.
On February 1, 1960, 29 of the registered voters of Impact petitioned the County Judge of Taylor County to call an incorporation election. On that same date the County Judge found that all the requirements of Article 1133 et seq. of Vernon's Texas Civil Statutes had been complied with, and an election was set for February 13, 1960. The leader in the movement for the incorporation of Impact, Dallas, G. Perkins, was appointed by the County Judge as the presiding judge of the election, notices were posted and all other statutory requirements regarding the incorporation election were complied with. On February 11, 1960, the County Judge entered an order revoking the order of February 1, 1960, and ordered that the election not be held. In the face of such order the incorporation election was held on February 13, 1960; twenty-seven votes were cast for incorporation and no votes were cast against. The returns of the election were presented to the County Judge, and he refused to take any of the steps necessary to put the election into effect. This court in Perkins v. Ingalsbe, 162 Tex. 456, 347 S.W.2d 926, caused a writ of mandamus to issue directing the County Judge to accept the returns, canvass the votes and to declare the results of the election.
On August 2, 1961, Impact was declared incorporated; and on August 14, 1961, Impact's officials were elected. By write-in votes, Dallas G. Perkins was unanimously elected mayor and his wife was elected secretary of Impact. Since the County Judge declared the results of the incorporation election Impact has functioned as an incorporated town. Elections have been held,
On September 1, 1961, the Attorney General, upon the relation of J. C. McKee et al. and the City of Abilene, and without the joinder of either the county attorney or the district attorney, filed this quo warranto proceeding to have declared invalid the incorporation of Impact. The case was tried before a jury and four special issues were submitted. In response thereto the following findings were made: (1) at the time the petition to incorporate the proposed town of Impact was presented to the County Judge, said proposed town was a portion of a territory comprising a larger unincorporated community or settlement; (2) that the petitioners for the election did not fix the limits and boundaries so as to arbitrarily exclude a portion of the larger unincorporated community of which the proposed town of Impact was a part; (3) the proposed town of Impact was conditioned so as to be subject to municipal government; and (4) the petitioners for the election did intend for the proposed town to be used strictly for town purposes. Based on these findings the trial court concluded that Impact was validly incorporated.
The Court of Civil Appeals, in reversing the judgment of the trial court, placed major emphasis on the jury's answer to Special Issue No. 1 in construing Article 1133, supra, and held that only whole towns and villages are authorized to be incorporated in the absence of natural barriers. The Court then held that the evidence conclusively shows that the proponents of incorporation did not incorporate a town, but only "an arbitrary slice" of a town. Thus, the Court concluded that the incorporation of Impact was invalid. The Court also held that Articles 966h and 974d-9, infra, have not validated the incorporation of Impact. This holding was based on the conclusions that the validating acts do not apply to towns whose incorporation has been in violation of law, and that Impact has been so incorporated. It was further held that the validating acts apply only to incorporated towns published in the last Federal census.
Because of the disposition we make of the case it is unnecessary for us to decide the propriety of the holding of the Court of Civil Appeals that the initial incorporation of Impact was invalid. Neither is it necessary for us to decide whether the Attorney General had a legal right to file and prosecute this suit without the joinder of the district attorney or the county attorney.
There is another matter that can have no material bearing on the question of whether or not the attempted incorporation has been validated. The record discloses that since the rendition of our judgment in Perkins v. Ingalsbe and the receipt and canvassing of the vote showing a majority in favor of incorporation of Impact, the qualified voters therein have authorized the sale of intoxicating liquors and have thus created an "oasis" on the boundary of a "dry" city in a "dry" county. This situation is highly displeasing and all but intolerable to a number of the individual respondents and, no doubt, to a large number of other citizens in the area. But whether the attempted incorporation of Impact should be validated was and is a legislative question, and whether intoxicating liquors shall be sold in Impact, if validated, was and is a political question. Through its local option provisions, Article 666, Vernon's Texas Penal Code, permits authorization of the sale of intoxicating liquors in incorporated towns in dry counties, Myers v. Martinez, Tex.Civ.App., 320 S.W.2d 862, writ refused, n. r. e., 160 Tex. 102, 326 S.W.2d 171, and the courts have neither the duty nor the right to deny effect to a validating act because it is displeasing to those living in surrounding dry areas that the inhabitants of a town have authorized the sale of intoxicants therein.
The Validating Acts
Perkins relies upon Articles 966h and 974d-9, Vernon's Annotated Civil Statutes, infra, to support his contention that the Legislature has properly exercised its power to validate and has validated any defects in the incorporation, boundary lines and governmental proceedings and acts of Impact. In our opinion Impact comes within the provisions of Article 966h, infra; and Article 974d-9, infra.
In 1961 the 57th Legislature passed House Bill No. 482
On the effiective date of the Act, Impact was involved in litigation (Perkins v. Ingalsbe, supra), but not such litigation as would exclude Impact from its coverage, for the Perkins case was not attacking the legality of the incorporation of Impact. The Perkins case was a mandamus proceeding seeking to compel the County Judge to declare the results of the incorporation election. Further, the Perkins case did not have the result of excluding Impact from the coverage of Article 966h since the litigation was not ultimately determined against the legality of Impact's incorporation.
At the outset it is necessary to dispose of the issues raised by the State's contention that the legislative power to cure the type of deficiency said to exist in the initial incorporation of Impact is constitutionally denied or prohibited by Sec. 4, Article XI of the Texas Constitution, Vernon's Ann.St. which provides:
It is argued that the Constitution empowers the Legislature to authorize only cities and
The accepted rule is that the Legislature has and may exercise all legislative power not denied or prohibited to it, expressly or by necessary implication, by the Constitution. Watts v. Mann, Tex.Civ.App., (1945), 187 S.W.2d 917, writ refused; State v. Brownson, 94 Tex. 436, 61 S.W. 114. Section 4, Article XI, does not expressly deny to the Legislature the power to authorize the incorporation of less than the whole of an unincorporated settlement as a town, and neither does it do so by necessary implication. The Legislature clearly has the power to validate any defects in the incorporation of Impact, its boundaries and its governmental proceedings and acts.
In considering the applicability of a validating act, this court must acknowledge the principle that even though an act of incorporation is void from its inception because of an unwarranted exercise of power or because of an entire absence of power, the Legislature may validate such act and make it live, for what the Legislature has the power to authorize, it has the power to ratify. State v. Bradford, 121 Tex. 515, 50 S.W.2d 1065, 1078. Thus, the Legislature properly exercised its political power when it provided in Section 1 of Article 966h that the incorporation of towns to which the Act applies "Shall not be held invalid by reason of the fact that the election proceedings or other incorporation proceedings may not have been in accordance with law, or by reason of a failure to properly define the limits of such * * town." (Emphasis added), and provided in Section 2 that "The areas and boundary lines of * * * towns affected by this Act, * * * are in all things validated * * *."
The State asserts that the attempted incorporation of Impact is invalid because those initiating the incorporation proceedings arbitrarily fixed the boundaries of Impact so as to carve out only a small part of a much larger unincorporated community. That type of deficiency, if it be one, is covered by both the general and specific provisions of the validating act. To say that the Legislature did not intend to validate incorporation proceedings because the area included within the proposed boundaries is less than the general settlement, or because the limits of the area incorporated are too narrowly drawn, is to ignore the very language of the Act which, being plain and clear, is the sole source from which intent may be derived. Simmons v. Arnim, 110 Tex. 309, 220 S.W. 66, 70; Gilmore v. Waples, 108 Tex. 167, 188 S.W. 1037, 1038.
Article 966h imposes three conditions precedent to validation: (1) there must have been an attempt to incorporate under the general laws of this state before the effective date of the Act, (2) there must have been an attempt to function as an incorporated town before the effective date of the Act; and (3) there must have been a population of 4,500 or less according to the last preceding Federal census on the effective date of the Act. In our opinion these three conditions have been met.
There has been no dispute that there has been an attempt to incorporate Impact as a town; rather, the State contends that Article 966h is not applicable to validate any defect in the incorporation of Impact since Impact was not actually functioning as an incorporated town on the effective date of the Act. This contention is untenable. The language of the Act does not limit its application to towns that have actually functioned as incorporated towns; it also applies to towns that have been "attempting to function" as incorporated towns. Impact could not actually function as a town until the county judge performed the statutory duties required of him by our decision in Perkins v. Ingalsbe, supra. The evidence established that Impact has been attempting to function as an incorporated
The third requirement of the Act is more difficult to dispose of. The State contends that Article 966h does not validate any defects in the incorporation of Impact since Perkins did not allege or prove that the population of Impact is shown in the list of all incorporated towns in the 1960 Federal census. It is argued that validating acts must apply to classes of towns to get around the prohibition against local and special laws found in Article III, § 56 of the Texas Constitution. It is the State's position that the phrase "according to the last preceding Federal Census' has been used in the Act so that the Legislature can know with certainty which towns are to have their incorporations validated. Therefore, it is the State's contention that this validating act does not apply to all towns with populations of four thousand five hundred or less, but only to those de factor corporations with the requisite populations as shown in the 1960 Federal census list of all incorporated towns in Texas.
Perkins contends that the Court of Civil Appeals has erred in holding that since Impact's population is not shown in the list of all incorporated towns in Texas. Article 966h does not apply. It is argued that if Impact's population must be shown to be 4,500 or less according to the last preceding Federal census, it need not be shown in the list of all incorporated towns in Texas; but rather all that need be shown is that the number of individuals living in Impact in 1960 and enumerated in the Federal census was 4,500 or less. However, Perkins contends that he need not establish that Impact's population was 4,500 or less "according to the last preceding Federal census" since the State has not disputed that Impact's population is only a little over 200 inhabitants. Though we disagree with Perkins' last contention in this regard, in our opinion Impact's population is within the confines of Article 966h, and this fact may be established "according to the last preceding Federal Census."
The phrase "according to the last preceding Federal Census" cannot be ignored as Perkins contends, for it is settled that every word in a statute is presumed to have been used for a purpose; and a cardinal rule of statutory construction is that each sentence, clause and word is to be given effect if reasonable and possible. See: McDonald v. Thompson, 305 U.S. 263, 59 S.Ct. 176, 83 L.Ed. 164, rehearing denied, 305 U.S. 676, 59 S.Ct. 356, 83 L.Ed. 437; Eddins-Walcher Butane Co. v. Calvert, 156 Tex. 587, 298 S.W.2d 93.
Webster defines "census" to mean "an official enumeration of the population of a county or of a city or other administrative district * * *." The phrase "according to the last preceding Federal Census" contained in Article 966h relates that Article to the United States Census immediately preceding the effective date of the act — May 29, 1961, which would include the 1960 decennial census or any intervening special census authorized under 13 U.S.C.A. § 8. See: Article 23, § 8, Vernon's Annotated Civil Statutes; See also: City of Bisbee v. Williams, 83 Ariz. 141, 317 P.2d 567.
The State contends that in seeking the legislative intent behind the inclusion of this phrase in Article 966h it is reasonable to suppose that it was adopted so that it could be definitely established, by reference to an official report, whether a particular town within the 4,500 or less classification had been validated,
Impact is not listed in the 1960 Federal census enumeration of all incorporated towns in Texas, and there has been no intervening special census of which we may take judicial notice, likewise, no field canvass has been made by the Bureau of the Census. A showing of the exact number of inhabitants living within Impact at the time the 1960 census was taken could have been made by a field canvass;
Table 8 of the Bureau of Census published report entitled United States Census of Population: 1960, Number of Inhabitants, Texas, lists the population of all incorporated places in Texas and the population of all unincorporated places having a population of 1,000 or more which are outside the urbanized areas of towns in Texas which have a population of 50,000 or more. Table 10 of the above mentioned census report lists the population within the urbanized areas of Texas. Table 8 and Table 10 combined show the population of all incorporated places and all unincorporated places with a population of 1,000 or more in Texas.
The enumeration of the population of the urbanized area of Abilene is shown in Table 10, and from this table we judically know that there is no unincorporated community outside the city limits but within the urbanized area of Abilene with a population of more than 4,500.
Subsequent to the passage of Article 966h, supra, Senate Bill No. 59
"Sec. 2. The boundary lines of all such cities and towns covered by the original incorporation proceedings are hereby in all things validated."
Article 974d-9, like Article 966h, contains three prerequisites for legislative validation: (1) an incorporation or an attempt to incorporate; (2) a functioning as an incorporated town since the date of such incorporation or attempted incorporation; and (3) a population of not more than six thousand (6,000) according to the Federal census of 1960.
The State contends that Article 974d-9 does not apply to Impact since it validates only those towns shown in the 1960 Federal census which have functioned as incorporated towns since the date of their attempted incorporation, and that Impact has not so functioned. We disagree with this contention. The evidence does establish that for a period of some 18 months, between February 13, 1960, and August 2, 1961, Impact lay dormant. However, Article 974d-9 does not apply only to towns that have functioned as incorporated towns since the date of their attempted incorporation, but it also applies to towns which have functioned as incorporated towns since the date of their incorporation. Impact was declared incorporated on August 2, 1961, and since that date Impact has functioned as an incorporated town. Thus, two prerequisites for legislative validation under Article 974d-9 — incorporation, and a functioning as an incorporated town since the date of incorporation — have been met.
The third requirement of Article 974d-9 necessitating a showing that on the effective
In our opinion if there were any defects in the incorporation, boundary lines, area, or governmental proceedings and acts of Impact, Texas, such defects have been validated by Article 966h and Article 974d-9.
The judgment of the Court of Civil Appeals is reversed, and the judgment of the trial court is affirmed.
CALVERT, C.J., concurs in the result.
WALKER and STEAKLEY, JJ., dissenting.
WALKER, Justice (dissenting).
For the sake of brevity and since the Court does not hold otherwise, I begin with the premise that the original incorporation proceedings were invalid for the reasons pointed our by the Court of Civil Appeals in its opinion. Tex.Civ.App., 360 S.W.2d 555. The only question then is whether the attempted incorporation was validated by either Article 966h or Article 974d-9, Vernon's Ann.Tex.Civ.Stat. The Court evidently regards each of these statutes as a rather weak crutch, because it is unwilling to venture forth without the aid of both.
Article 966h, which became effective on May 29, 1961, applies only to cities and towns "which are now functioning or attempting to function as incorporated cities or towns." On May 29, 1961, the incorporation election had been held and Dallas G. Perkins was prosecuting his action for mandamus to require the County Judge to accept the returns, canvass the votes and declare the results of the election. This was an effort by an individual to complete the election process so that it could be determined whether Impact was incorporated to the end that it might begin functioning as a municipality. It did not constitute as attempt by the town to function as such, and there is no evidence that Impact was functioning or attempting to function as an incorporated town at the time Article 966h became effective. By the very terms of the statute, it has no application to Impact.
A comparison of Articles 966h and 974d-9 leads me to the conclusion that the Legislature intended by the latter statute only to validate technical defects in the incorporation of cities and towns where there has been an effort in good faith to comply with the general law. Article 966h declares the legislative intent to validate "all cities and towns in Texas" which satisfy the other requirements of the statute. It then states in no uncertain terms that the areas of such cities and towns are in all things validated, and that their incorporation shall not be held invalid because of the inclusion of more territory than is expressly authorized by Article 971, Tex.Rev.Civ.Stat.1925. This shows rather clearly the manner in which the Legislature expresses its intention to deal with the territorial problem we have in the present case. On the other hand, Article 974d-9 purports to validate "the incorporation proceedings" of cities and towns which meet the conditions there laid down, and states that their incorporation shall not be held invalid by reason of the face that the election proceedings or other incorporation proceedings may not have been in accordance with law. The boundary lines covered by such proceedings are expressly validated, but no mention is made of area or of an effort to include more or less territory than is authorized by general law. It also appears from the emergency clause that the Legislature was concerned with "technical oversights in the incorporation of cities and towns affected by this Act." In my opinion the lawmakers did not intend thereby to give legal vitality to an attempted incorporation which is invalid by reason of the arbitrary exclusion of a major part of the town or village.
In this context "according to" means "as attested or declared by." Webster's New International Dictionary, 2nd ed. 1941. The references to the Federal Census are simply another way of saying that the Legislature wished to validate only those cities and towns that are affirmatively shown by the official complications of the Bureau of the Census to be within the established classifications. It would also be well to observe at this point that while the burden was on respondent to show the invalidity of the original incorporation proceedings, petitioners have alleged the validating acts as a defense to the action. In my opinion it was their burden to bring themselves within the terms of the statutes. If the application of the validating acts turns upon any unresolved issue of fact, petitioners have waived the defense by failing to obtain or request a jury finding. Rule 279, Texas Rules of Civil Procedure.
There is no testimony showing the number of people which the census enumerators found to be residing in the area embraced by the purported corporate limits of Impact. The record does not contain a special compilation of the Census figures applicable to that territory although the Federal statute apparently authorizes the Secretary of Commerce to furnish such information upon request. 13 U.S.C.A. § 8. We have only the official report of the 1960 Federal Census for the State of Texas, hereinafter referred to as the census report, a copy of which is attached to one of respondent's briefs.
The Court says, in effect, that the information found in Tables 8 and 10 of the census report shows conclusively and as a matter of law that the population of Impact according to the 1960 Federal Census was not more than 4,500. I am unable to agree with this conclusion. Table 8 is a list in alphabetical order of all places in Texas which the census officials regarded as incorporated, and of certain unincorporated places containing more than 1,000 inhabitants, with the population of each according to the 1960 Federal Census. The listed cities and towns range in population from Belcherville and La Isla, each with 35 inhabitants, to Houston with its population of 938,219. With reference to the unincorporated communities, the introduction to the census report discloses that "the Bureau has delineated boundaries for densely settled population centers without corporate limits." Neither Impact nor North Park is mentioned in Table 8, and the census report does not purport to show the population of either according to the 1960 Federal Census.
Table 10 is a compilation of the population figures for certain urbanized areas. The Abilene Urbanized Area is included in such list, but there is nothing in the census report to identify the boundaries of that Area except a map found on page 46. This map, which contains no metes or bounds and does not purport to show either Impact or North Park, is approximately 5 inches by
The Court assumes that the people residing in Impact were not included in the population figures for Abilene. It then assumes that Impact must lie wholly within or wholly without the Abilene Urbanized Area. On the basis of these assumptions, the Court reasons: (1) If Impact lies wholly within the Abilene Urbanized Area, it can be shown to fall within the statutory classifications by subtracting the population figures for Abilene from those for the Abilene Urbanized Area; and (2) If Impact lies wholly without the Abilene Urbanized Area, the community is shown to have less than 1,000 inhabitants according to the 1960 Federal Census by the fact that it is not mentioned in Table 8. What is the basis for reaching these conclusions as a matter of law? The record contains no information which shows definitely where the census authorities located the city limits of Abilene or the boundaries of the Abilene Urbanized Area on the ground. The mere fact that an area which someone has sought to incorporate is not mentioned in Table 8 does not conclusively establish that the census enumerators found less than 1,000 people residing there. Its absence from the list might be due to the fact that the responsible census authorities did not regard it as a "densely settled population center." The Court apparently is saying that in view of the information found in the record with reference to the number of acres covered by Impact and North Park, one or the other would probably have been regarded by the census officials as a "densely settled population center without corporate limits" and thus would probably have been included by them in Table 8 if it contained more than 1,000 inhabitants. And yet the criteria by which such officials determined whether a given area was a "densely settled population center" are not disclosed by the census report or by the record in this case.
It might be proper for the trier of fact to resort to this process of reasoning, but petitioners have not obtained jury findings or requested issues to establish the facts on which the majority holding is based. The inferences drawn by the Court from the facts proven and the information contained in the census report appear to be reasonable, but it seems rather strange for a court of law to indulge in assumptions and inferences whose soundness has not been established as a matter of law. Entirely aside from this problem, however, the mere fact that the Court must resort to assumptions, probabilities, and inferences demonstrates rather convincingly that the 1960 Federal census figures at our disposal do not affirmatively declare and attest that the census enumerators found not more than 4,500 and not more than 6,000 people residing in Impact.
I would affirm the judgment of the Court of Civil Appeals.
STEAKLEY, J., joins in this dissent.