(dissenting).
As I see it, the issue in this case is not whether the action taken to incorporate the City of Hendersonville, Tennessee, can by strict definition be brought under T.C.A. sec. 6-1801 et seq., but whether this chapter was ever intended by the legislature to be put to the use for which the incorporators seek to employ it. In other words, the question more properly stated is: whether by what little is said in sec. 6-1801 et seq., thirty-nine people can call an incorporation referendum, in which only fifty-three people vote for incorporation, and so create a minuscule municipality of 250 pepole, in the figurative heart of a community of 14,000 people. 14,000 people who reject the idea of municipal government but who will be helpless to preserve and continue under the form of government they have chosen, because the mini-city created in their midst will have the power by statute, *376T.C.A. sec. 6-309, to gobble them Tip in quarter-mile square chunks of not more than five hundred persons, at will.
It would seem that it would only be necessary to state this general proposition to show the legislature never intended any such unjust result.
The facts alleged and admitted by the declaration are, that there exists in Sumner County, Tennessee', the unincorporated community of Hendersonville. This community comprises approximately forty square miles and is inhabited by some fourteen thousand people. These people have a common community interest. Presently they a.re serviced with public utilities and other arrangements related thereto which they consider adequate. Such government as they think they require is provided by Sumner County and the State of Tennessee. In the midst of this community of fourteen thousand people, thirty-nine people petitioned the election commission to hold an incorporation election to incorporate 1%oo of one square mile of the total community territory of forty square miles, with the proposed municipality to have a total population of 250 people. All of the people signing the petition with the exception of four live on two streets of the community, with the great majority of the thirty-nine petitioners residing on one single street of the community. When the election was held, only seventy-nine votes were cast, fifty-three for incorporation and twenty-six against.
In such a case as this it is obviously our duty to subject the statute under which this injustice is sought to be imposed to the most serious and detailed scrutiny and if at all possible sustain the Chancellor.
*377In considering this question certain statutes must be examined. Two of these are T.C.A. sec. 6-1803 and T.C.A. sec. 6-309. These statutes' provide in relevant part as follows:
“6-1803. Bight to ado ft city-manager form — Incorporation within specified distances from existing municipalities. — The residents of any incorporated municipality or 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 be and become incorporated and be governed as herein set forth. No unincorporated territory shall be incorporated under the provisions of chapters 18 to 23, inclusive, of this title unless such territory contains not less than two hundred (200) persons, who shall he actual residents of the territory, and shall also contain real estate included in said territory worth not less than five thousand dollars ($5,000).”
T.C.A. sec. 6-309 provides:
“6-309. Annexation by ordinance. — A municipality when petitioned by a majority of the residents and property owners of the affected territory, or upon its own initiative when it appears that the prosperity of such municipality and territory will be materially retarded and the safety and welfare of the inhabitants and property thereof endangered, after notice and public hearing, by ordinance, may extend its corporate limits by annexation of such territory adjoining its existing boundaries as may be deemed necessary for the welfare of the residents and property owners of the affected territory as well as the municipality as a *378whole, provided said ordinance shall not become operative until thirty (30) days after final passage thereof.
“Provided, however, that before any territory more than one-fourth (h4) square mile in area or having a population of more than five hundred (500) persons may be annexed under this section, the governing body of the municipality shall adopt a plan of service setting forth at a minimum the identification and projected timing of municipal services proposed to be extended into the territory proposed to be annexed. Provided, further, that before any such plan of service shall be adopted, it must have been submitted to the local planning commission, if there be such, for study and a written report, to be rendered within ninety (90) days after such submission, unless by resolution of the governing body a longer period is allow. ’ ’
Both of these Code sections must be taken into account in judging this case, because this is the only way this Court can fairly divine the legislative intent with respect to the creation and growth of municipalities. Certainly, the question of the right by statute of a municipality of two hundred people to annex at the rate of five hundred people and at the cost of the political rights of those it will annex is a pertinent inquiry in considering whether or not the legislature ever had in mind any such incorporation as is here sought.
Considering T.C.A. sec. 6-1803 literally we find no express authorization for this incorporation. If such exists it must be by reason of the inferred meaning of general terms. The authority to incorporate under sec. 6-1803 is provided for only by the first sentence of the statute. This sentence provides in part, “The residents of any incorporated municipality or of any territory which it is *379desired to incorporate * * *”. The controlling word so far as this case is concerned is the word “territory”.
It is plain that in the absence of statutory definition, the term “territory” is ambiguous. The term cannot be given its dictionary definition for it is variously defined. However, some of this ambiguity is relieved if the term “territory” is read in connection with, and limited by the words “The residents of”. It would seem this is indicated since people are of more importance than area or territory. When read in this way it means not some, but all of the residents of a territory are to be incorporated and this means all those residents who will be affected by incorporation. We repeat, the important question must always be what are the rights of the people.
There is nothing in the second sentence to prevent this construction. This sentence 1 does not spell out authority for incorporation. Rather, it simply defines the smallest territory that can be incorporated. And examine it as you will, you can find nothing in it that warrants defining territory in any other way than that suggested above.
The idea that “The residents * # * of any territory” means all of the residents of a given territory is borne out by the provision in this same sentence, that “The residents of any incorporated municipality * # * shall have the right * * *” to incorporate under the Code section.
*380Here, again, although the statute doesn’t say so, everyone would agree that this provision contemplates all of the residents of the municipality being* included in the reincorporation. So, if the term “residents” obviously means all of the residents where the reference is to an incorporated municipality, why does it not mean all of the residents of a territory, as well?'
The only conceivable reason for holding to the contrary would be that the second sentence of the statute requires a different result. But, as has already been pointed out this sentence confers no powers of incorporation at all. It is to the contrary simply a limitation on the powers of incorporation.
As to the argument that this construction provides no exact statutory beginning point for the size, only a statutory limitation or ending point, the reply must be that this is a short-coming in the act which this Court should not undertake to supply when so to do results in a serious invasion in the political rights of fourteen thousand people. If the act of incorporation is inadequate in this regard, and it obviously is unless the term “territory” is to be defined as above suggested, it is not incumbent on this Court to meet this inadequacy by an unjust construction. If we are going* to fill up gaps in statutes we should do so only on the side of fairness and right. And where, as here, the statute does not expressly and exactly require us to validate this incorporation, because of the gap left in it by failure to define territory in relation to inhabitants, we are under no duty to fill up this gap just so there can be an unjust result. We should bear in mind that we do not have to define every case in which incorporation can be had, in dealing with this case. Here, we simply have to say whether or not this particular *381incorporation is contemplated by this statute, and it clearly is not. I would affirm the Chancellor’s decree.
“No unincorporated territory shall be incorporated under the provisions of chapters 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 ($5,000.00).”