Gray County Production Co. v. Christian, 6040

• Decision Date: 08 May 1950
• Docket Number: No. 6040,6040
• Citation: 231 S.W.2d 901
• Parties: GRAY COUNTY PRODUCTION CO. et al. v. CHRISTIAN et al.
• Court: Texas Court of Appeals

Page 901

231 S.W.2d 901

GRAY COUNTY PRODUCTION CO. et al. v. CHRISTIAN et al.

No. 6040.

Court of Civil Appeals of Texas, Amarillo.

May 8, 1950.

Rehearing Denied June 12, 1950.

Sanders, Scott, Saunders & Smith, Amarillo (C. J. Humphrey, Amarillo, of counsel), for appellants.

Boyer, McConnell & Hankins, Perryton, for appellees.

LUMPKIN, Justice.

On August 23, 1948, the appellants-Gray County Production Company, a Texas corporation; Esta Kennedy, individually and as independent executrix of the estate of D. C. Kennedy, deceased; Herrmann Brothers Oil Company, a partnership composed of A. E. Herrmann and G. C. Herrmann; Benonine Oil Company, a Texas corporation; and C. J. Oates and wife, A. C. Oates-filed a petition, No. 7009, in the District Court of Hutchinson County, Texas, against the appellees-Paul Christian, the mayor; Ferrell B. Early and John C. Bergner, the two commissioners; and Mrs. Irene Foster, the tax assessor and collector, all officers of the City of Stinnett, Hutchinson County. The appellants' petition attacked the validity of the incorporation of the City of Stinnett. It alleged that on April 5, 1927, an election was held under the provisions of Article 1155, Revised Civil Statutes of Texas 1925. As a result of the election the county judge of Hutchinson County declared the City of Stinnett to be incorporated and under a commission form of city government. The purpose of the case was to prevent the imposition of taxes on certain oil and gas interests and certain agricultural and pastoal lands outside of the inhabited areas of the City of Stinnett but within its city limits.

On September 8, 1948, quo warranto proceedings, No. 7042, were instituted in the District Court of Hutchinson County wherein the State of Texas on the relation of A. E. Herrmann attacked the validity of the incorporation of the City of Stinnett. Named as defendants in this suit were the same city officers as were named in the first case. On September 12, 1949, Cause No. 7009 and Cause No. 7042 were consolidated by the trial court under the style and number of Gray County Production Company et al. v. Paul Christian et al., No. 7009.

In their petitions the appellants alleged, in effect, that the incorporation of the City of Stinnett on April 5, 1927, was invalid for the following reasons:

1. Since the boundaries of the city included more than two square miles and the city had a population of less than 2000 persons, its incorporation was in violation of Article 971, Vernon's Annotated Civil Statutes; and 2. Since the incorporated area of Stinnett included pastoral and agricultural lands in excess of that necessary for the occupancy of its citizens as well as land in excess of that necessary for reasonable expansion, the incorporation of the city was improper and in violation of law.

Among the special exceptions leveled to the petitions was the exception that appellants' pleadings were insufficient in law. It reads as follows: 'For the reason that if there were less than 2000 residents of the City of Stinnett, which is not admitted, but expressly denied, such incorporation has been validated by curative legislation, Article 973a. * * *'

After a hearing on this exception, the trial court made no findings of fact but did hold that the incorporation of the City of Stinnett had been validated by Article 973a, Vernon's Annotated Civil Statutes, and ordered that the appellants take nothing in either case. From this order of the court the appellants gave notice of appeal and have perfected the appeal in each case. We shall discuss both cases in this opinion.

The appellants contend that the trial court erred in holding the defects in the incorporation of the City of Stinnett cured by Article 973a, Vernon's Annotated Civil Statutes. The City of Stinnett was incorporated in conformity with Article 1155. Article 971 provides that no city or town with a population of 2000 inhabitants or less shall be incorporated with a superficial area of more than two square miles. In Wilson v. Carter, Tex.Civ.App., 161 S.W. 411, it was held that a city or town could not be legally incorporated and include more than two square miles of territory unless it contained a population of 2000 inhabitants or more. The court held that the defect in incorporation would not be cured by a resolution of the city council to reduce the area to less than two square miles. Our courts have held that municipalities having more than the specified amount of territory are without authority of law, but they may exist as corporations de facto. Cook v. Bayne, Tex.Civ.App., 38 S.W.2d 419, dism.; Elliott v. Texas Pacific Coal & Oil Co., Tex.Com.App., 29 S.W.2d 982. The Legislature has enacted curative acts from time to time validating such corporations. Article 973a, Senate Bill 27, passed by the 51st Legislature, effective March 10, 1949, purports to be such an Act. It is entitled: Cities and Towns-Validating Act. Section 2 of the Act provides as follows: 'All petitions praying for an ordinance and all ordinances discontinuing or attempting to discontinue any territory from within the corporate limits of any incorporated city or town having a population of two thousand (2,000) inhabitants or less * * * and the boundaries and areas of any such city or town after the discontinuance or attempted discontinuance of any territory forming a part of said city or town * * * shall be * * * in all things validated and confirmed, and all cities and towns, having a population of two thousand (2,000) or less at the time of incorporation, whose charters and incorporations may be void by reason of having included in such limits more territory than authorized by Article 971, Revised Civil Statutes of 1925, are hereby declared to be valid, the same as if at first authorized.' It is on this last portion of Section 2 of Article 973a that the trial court relied in sustaining the appellees' special exception.

The appellants attack the validity of this portion of Article 973a and contend that it is not applicable to violations of Article 971, as argued by the appellees. They say that this statute applies only to towns which have discontinued or attempted to discontinue territory; that it applies only to cities and towns incorporated in conformity with Article 971; that it is unconstitutional because it is so ambiguous as to be uncertain and...