State ex rel. Needham v. Wilbanks

Texas Supreme Court

State ex rel. Needham v. Wilbanks

595 S.W.2d 849, 23 Tex. Sup. Ct. J. 218, 1980 Tex. LEXIS 320

CourtTexas Supreme Court

DecidedFebruary 20, 1980

DocketNo. B-8723

StatusPublished

Cited by6 cases

This text of 595 S.W.2d 849 (State ex rel. Needham v. Wilbanks) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State ex rel. Needham v. Wilbanks, 595 S.W.2d 849, 23 Tex. Sup. Ct. J. 218, 1980 Tex. LEXIS 320 (Tex. 1980).

Pincite

Opinion

SPEARS, Justice.

This is a quo warranto action brought by Petitioner, the State of Texas, acting through the district attorney of McLennan County on relation of W. D. Needham and others, seeking to declare the incorporation of the City of Hallsburg invalid. After a jury trial, the trial court rendered judgment for defendants upholding the validity of the incorporation, and the court of civil appeals has affirmed. 583 S.W.2d 914. We reverse the judgment of the court of civil appeals and render judgment for the State.

The community of Hallsburg has existed since 1901, and is situated east of the City of Waco and west of the City of Mart in what witnesses characterized as a basically rural area of McLennan County. Although in years past, Hallsburg included a railroad station, a cotton gin, and two stores, all of these had been abandoned by the mid-1960’s. At the time of incorporation in December of 1973, the community cluster included five residences, a church, and a school; however, the church, the school, and two of the residences were not included in the incorporated city limits.

The configuration of the incorporated area is rather unusual, consisting of strips 200 to 500 feet in width running along county and state roads for a distance of over 31 miles.¹ The western edge of the area consists of a thirty foot strip of land contiguous to the five mile extraterritorial jurisdiction boundary of the City of Waco. This strip has no road or physical characteristics that would enable it to be found on the ground. The proponents of incorporation testified that the Hallsburg community includes the entire area covered by the incorporated limits of the City of Hallsburg, but admitted that, as incorporated, it was not possible to drive from the northern part to the southern part of the city without leaving the city limits.

Within the corporate limits there are a total of seventy-eight residences, one school, three businesses, and two churches. There [851]*851are forty-three residences immediately outside the corporate lines. None of the businesses and neither of the churches is located in the cluster of buildings known as Halls-burg. One store is located in the community of Elk; one is on the western end of Trading House Creek Lake; and one is near the intersection of State Highways 164 and 6. There are no public buildings in the incorporated area. A Texas Power and Light Generating Station on Trading House Creek Lake is included in the incorporation, but there are no residences on that property. Except for the small clusters at Halls-burg and at Elk, over 5½ miles away, there is no unity of proximity between residences, with a distance between residences of as much as 3¼ miles in two instances and more than a mile in several others. Only two-thirds of the Elk community was included in the incorporated area.

The incorporation in dispute was ordered on December 6, 1973, by the county judge of McLennan County pursuant to a petition filed by residents of the Hallsburg area and an affirmative vote of seventy-four to eighteen in an election called by him. This action to set aside the incorporation was filed on December 28, 1973.

Petitioners contend that the area sought to be incorporated as the City of Hallsburg did not, and still does not, possess the characteristics of a city or town at the time of the incorporation and therefore could not as a matter of law be incorporated under the provisions of the Texas Constitution and the statutes. Respondents argue that the community of Hallsburg has existed since 1901 and that the required minimum of 600 people lived within a two square mile area. They justify the unique configuration of the incorporated city limits as an attempt to exclude agricultural lands as required by the statute.

The issues presented are: (1) whether the State established, as a matter of law, that the area incorporated as the City of Halls-burg did not previously constitute a city or town, and (2) whether the incorporation of Hallsburg was validated by Tex.Rev.Civ. Stat.Ann. art. 974d-21.² The jury found that Hallsburg was an existing town prior to its incorporation, and the court of civil appeals held that there was sufficient evidence to support the jury’s finding. We cannot agree and hold that as a matter of law Hallsburg did not constitute a city or town and lacked the status required to utilize the incorporation statutes.

Article XI, § 4 of the Texas Constitution provides that “Cities and towns having a population of five thousand or less may be chartered alone by general law.” (emphasis added). The Constitution does not define a city or town. The enabling legislation, article 966, provides:

Any city or town containing six hundred inhabitants or over may be incorporated as such, with all the powers, rights, immunities and privileges mentioned and described in the provisions of this title relating to cities and towns, in the manner described in Chapter 11 of this title for incorporating towns and villages „ . . (emphasis added).

The purpose of the incorporation statutes is not to create towns and villages, but to allow those already in existence to incorporate. Incorporation contemplates the existence of an actual village, town, or city. Ewing v. State ex rel Pollard, 81 Tex. 172, 16 S.W. 872, 873-74 (1891); Rogers v. Raines, 512 S.W.2d 725, 728 (Tex.Civ.App.—Tyler 1974, writ ref’d n. r. e.); Harang v. State ex rel. City of West Columbia, 466 S.W.2d 8, 11 (Tex.Civ.App.—Houston [14th Dist.] 1971, no writ).

In State ex rel. Taylor v. Eidson, 76 Tex. 302, 13 S.W. 263, 264 (1890), this court set out certain criteria that would establish the existence, or nonexistence, of a town:

No definition of the word ‘town’ is given, and it follows that we must take the word on its ordinary signification — a collection of inhabited houses. The term [852]*852carries with it the idea of a considerable aggregation of people living in close proximity. A town population is distinguished from a rural population, which is understood to signify a people scattered over the country, and engaged in agricultural pursuits, or some similar avocations, requiring a considerable area of territory for its support. A section of country so inhabited cannot be called a town, nor treated as part of a town, without doing violence to the meaning ordinarily attached to that word, (emphasis added).

In Harang, supra, at 11 the court said:

There should be some degree of unity and proximity between the habitations so assembled to constitute a town or village. To be entitled to incorporate, the area of the town or village should be susceptible of receiving some municipal services. Id. at 11.

In Rogers, supra, at 730, the court said that there should exist a compact center or nucleus of population around which a town has developed. Id. at 730.

The residents of Hallsburg testified that they did not lack any utility or governmental services; however, those services were being furnished by government or private entities other than the city.

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