The opinion
Me. Justice Dyer
(dissenting).
Assuming as we must the allegations of the original bill to be true, the cause being here upon demurrer, the gist of the original bill is as follows:
That there is a large, contiguous, thickly settled, unincorporated community in Sumner County known as Hendersonville. That this area of about 40 square miles contains 14,000 people, business houses, schools, churches, 110 miles of water lines, 20 miles of sewer lines, and the inhabitants thereof have a common community of interest. That out of this area the incorporators have designated less than one square mile, containing 251 people to be formed into a municipal corporation under Chapter 18 of Title 6, T.C.A. The issue made is whether the incorporators are required to include the greater part of this area having a community of interest or can they incorporate any part of the area so long as the part to be incorporated contains at least 200 people and real estate the value of $5,000.00.
I think the case of State of Texas v. Perkins, 360 S.W.2d 55 (Tex.Civ.App., 1962), is in point. In the Perkins case the statute authorized a'“town or village” to incorporate. In this case there was an area of 691 acres, the inhabitants thereof having a common community of interest with 301 residences, 5 churches, and 25 business houses. There was an attempt to incorporate the Town of Impact as an area of 47.43 acres cut out of the 691 acres. The court quoted from Ewing v. State ex rel. *382 Pollard, 81 Tex. 172 , 16 S.W. 872 (1891), an opinion by the Supreme Court of Texas, as follows:
* * * the Supreme Court asked the question, “Who are empowered to create the corporations V’ It answered, “The inhabitants of cities, towns, and villages.” It then asked, “What are they empowered to incorporate,” It answered, “The cities, towns, and villages themselves, and not also such portions of the adjacent territory as these inhabitants may be pleased to embrace within the limits of the corporation.” It said that “the area occupied by a town * # * is so marked by the aggregation of residences and appurtenant structures that it is always practicable to fix the boundaries so as not to include any territory not authorized to be embraced. With a just disposition to respect the rights of the owners of adjacent property, no body of petitioners need make such a mistake as to this matter as will imperil the validity of the act of incorporation. ’ ’
The Court accepting the rationale of the Ewing case, which was, in effect, the incorporators could not include large areas of essentially rural land, applied same to the other side of the coin, that is, exclusion of a major portion of a contiguous inhabited area, and held the incorporators were required to include substantially the whole of the area as it existed at the time of the attempted incorporation unless there be natural boundaries separating the chosen area from the rejected areas. The court in the Perkins case said:
If the incorporating petitioners do not respect the rights of the inhabitants of a major portion of the town or village they imperil the validity of their acts in attempting to incorporate. 360 S.W.2d at 558 .
*383 State v. Perkins, supra, by the Court of Civil Appeals, was reversed by the Supreme Court of Texas but on other grounds; that is, that the incorporation of Impact was saved by certain validating acts. See 367 S.W.2d 140 (Tex.1963).
In State on Information of Eagleton v. Champ, 393 S.W.2d 516 (Mo.1965), the statute authorized incorporation of a “village and its commons.” In the Champ case the same issue was made as in State v. Perkins, supra, and the court adopted and followed the reasoning of the Perkins case.
The case of Board of Supervisors of Norfolk County v. Duke, 113 Va. 94 , 73 S.E. 456 (1912), involved a challenge to incorporation of a part of a thickly settled community. While the Virginia statute does differ from the statute involved in the case at bar, nevertheless the logic used by the court is persuasive. In the Duke case the Supreme Court of Virginia said:
As the act requires the town incorporated shall contain not less than 200 inhabitants, it is conceivable that such a community might be almost indefinitely subdivided and erected into municipal corporations, if a faction in one of the subdivisions chanced to obtain control. We do not believe that the act contemplates anything of the kind; and when it provides for the incorporation of a thickly settled community, it does not mean that the community shall be subdivided in accordance with the caprice and whim of a limited portion of the people constituting the entire community. Great and unnecessary burdens might be imposed, and great wrong and injury accomplished, under such a construction. 73 S.E. at 459 .
*384 The incorporation here is under T.C.A. 6-1803, the pertinent parts as follows:
The residents * * * of any territory which it is desired to incorporate shall have the right to adopt the provisions of chapters 18 to 23, inclusive, of this title in the manner herein provided; and thereupon such city or territory shall be and become incorporated and be governed as herein set forth. No unincorporated territory shall be incorporated under the provisions of chapter 18 to 23, inclusive, of this title unless such territory contains not less than two hundred (200) persons, who shall be actual residents of the territory, and shall also contain real estate included in said territory worth not less than five thousand dollars ($5,000). * * *
The decision here turns on the construction to be placed on the word “territory” as used in this statute. I do not think the Legislature by amending (Chapter 7, Public Acts of 1955), the original statute (Chapter 173, Public Acts of 1921), requiring a “territory” in order to incorporate have a minimum population and taxable property manifested an intent to authorize any territory meeting these two minimum requirements to incorporate regardless of any other circumstances.
In designating an area where a municipal corporation may be formed the Tennessee statute, uses the word “territory;” the Texas statute the words “town or village;” and the Missouri statute the words “village and its commons. ’ ’ I think these different words as used are interchangeable. They all refer to an unincorporated area that may become incorporated.
The statute here for construction authorizes a territory to form a municipal corporation. A municipal corpora *385 tion whether it be large or small is generally formed in a contiguous populated area where the residents have a community of interest for the purpose of obtaining local self-government and co-operative services, and I would presume the Legislature was aware of such when it authorized a territory to form a municipal corporation. I would construe the word “territory” as used in T.C.A. 6-1803 to mean such an area.
The size of the territory to be incorporated is in a large measure left to the people concerned and their judgment is not lightly to be ignored but I do not think the Legislature intended a small part of a large area could be incorporated at least when the large area itself is suitable for incorporation and the rights of the people of the large area are affected by the incorporation of the small area.
If this incorporation of less than one square mile be valid this inhabited territory of forty square miles having a common community of interest could wind up with thirty to forty municipal corporations. As noted in Board of Supervisors of Norfolk County v. Duke, supra, surely the Legislature did not intend any such result.
I realize this dissenting opinion is in conflict with Raucher v. Frost, 53 S.W. 318 (Ct. of Chancery Appeals, Tenn. 1889). I would overrule jRancher v. Frost.
I respectfully dissent from the majority opinion.