Perkins v. State, A-9284

Citation367 S.W.2d 140
Decision Date17 April 1963
Docket NumberNo. A-9284,A-9284
PartiesDallas G. PERKINS et al., Petitioners, v. The STATE of Texas, Respondent.
CourtSupreme Court of Texas

Cofer & Cofer, Austin, (Douglass D. Hearne, Austin, with above firm) and Dan Sorrells, Abilene, for petitioners.

Clint C. Small, Austin, and Tom K. Eplen, Abilene, for respondents Eplen, Daniel, Hooper & Dickson.

Waggoner Carr, Atty. Gen., Austin, for respondent State of Texas.

John W. Davidson and Les Cochran, Abilene, for respondent City of Abilene.

SMITH, Justice.

This is a quo warranto proceeding brought by the Attorney General in the name of the State of Texas to have declared invalid the incorporation of an area in Taylor County designated as the town of Impact, Texas. The trial court has held that Impact was validly incorporated, and the Court of Civil Appeals has reversed and rendered the cause for the State. Tex.Civ.App., 360 S.W.2d 555.

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:

'When a town or village contains more than two hundred (200) and less than ten thousand (10,000) inhabitants, it may be incorporated as a town or village in the manner prescribed in Chapter 11, Title 28, of the Revised Civil Statutes of Texas, 1925, and all amendments thereto.'

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 the City Council has met regularly, ordinances have been passed and complete records have been kept.

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 conclusion 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.

Article 966h

In 1961 the 57th Legislature passed House Bill No. 482 1 which is carried as Article 966h, Vernon's Annotated Civil Statutes. The act became effective on May 29, 1961, and validated any defects in the incorporation, the areas and boundary lines, and the governmental proceedings and acts of all cities and towns in Texas with a population of four thousand five hundred or less according to the last preceding Federal census. The statute provides in part:

'Art. 966h. Cities and towns of 4,500 or less, validation of incorporation; areas and boundary lines; governmental proceedings and acts.

'Section 1. All cities and towns in Texas of four thousand, five hundred (4,500) inhabitants or less, according to the last preceding Federal Census, heretofore incorporated or attempted to be incorporated under any of the terms and provisions of the General Laws of the State of Texas, * * * which are now functioning or attempting to function as incorporated cities or towns, are hereby in all respects validated as of the date of such incorporation, or attempted incorporation; and the incorporation of such cities and towns shall not be held invalid by reason of the fact that the election proceedings or...

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