(dissenting).
For the sake of brevity and since the Court does not hold otherwise, I begin with the premise that the original incorporation proceedings were invalid for the reasons pointed out by the Court of Civil Appeals in its opinion. Tex.Civ.App., 360 S.W.2d 555. The only question then is whether the attempted incorporation was validated by either Article 966h or Article 974d-9, Vernon’s Ann.Tex.Civ.Stat. The Court evidently regards each of these statutes as a rather weak crutch, because it is unwilling to venture forth without the aid of both.
Article 966h, which became effective on May 29, 1961, applies only to cities and towns “which are now functioning or attempting to function as incorporated cities or towns.” On May 29, 1961, the incorporation election had been held and Dallas G. Perkins was prosecuting his action for ■mandamus to require the County Judge to accept the returns, canvass the votes and declare the results of the election. This was .an effort by an individual to complete the ■election process so that it could be determined whether Impact was incorporated to the end that it might begin functioning as a municipality. It did not constitute an attempt by the town to function as such, and there is no evidence that Impact was functioning or attempting to function as an incorporated town at the time Article 966h became effective. By the very terms of the statute, it has no application to Impact.
A comparison of Articles 966h and 974d-9 leads me to the conclusion that the Legislature intended by the latter statute only to validate technical defects in the incorporation of cities and towns where there has been an effort in good faith to comply with the general law. Article 966h declares the legislative intent to validate “all cities and towns in Texas” which satisfy the other requirements of the statute. It then states in no uncertain terms that the areas of such cities and towns are in all things validated, and that their incorporation shall not be held invalid because of the inclusion of more territory than is expressly authorized by Article 971, Tex.Rev.Civ.Stat.1925. This shows rather clearly the manner in which the Legislature expresses its intention to deal with the territorial problem we have in the present case. On the other hand, Article 974d-9 purports to validate “the incorporation proceedings” of cities and towns which meet the conditions there laid down, and states that their incorporation shall not be held invalid by reason of the fact that the election proceedings or other incorporation proceedings may not have been in accordance with law. The boundary lines covered by such proceedings are expressly validated, but no mention is made of area or of an effort to include more or less territory than is authorized by general law. It also appears from the emergency clause that the Legislature was concerned with “technical oversights in the incorporation of cities and towns affected by this Act.” In my opinion the lawmakers did not intend thereby to give legal vitality to an attempted incorporation which is invalid by reason of the arbitrary exclusion of a major part of the town or village.
*150There is yet another reason why neither of the validating statutes has any application in this case. The Legislature has there declared its purpose to validate “[a] 11 cities and towns in Texas of four thousand, five hundred (4,500) inhabitants or less, according to the last preceding Federal Census,” and the “incorporation proceedings of all cities and towns in this state heretofore incorporated or attempted to be incorporated under the General Laws of Texas, and having a population according to the Federal Census of 1960 of not more than six thousand (6,000).” Petitioners would have us disregard the references to the Federal Census on the ground that a validating act must be liberally construed to effectuate the purpose of its enactment. The Court properly rejects this argument, because the rule of liberal construction does not justify our giving the statutes an affect not intended by the Legislature. No attempt has been made to validate cities and towns which have a certain population in fact. The lawmakers stated clearly and explicitly that they were validating only those having the requisite population according to the applicable Federal Census.
In this context “according to” means "as attested or declared by.” Webster’s New International Dictionary, 2nd ed. 1941. The references to the Federal Census are simply another way of saying that the Legislature wished to validate only those cities and towns that are affirmatively shown by the official compilations of the Bureau of the Census to be within the established classifications. It would also be well to observe at this point that while the burden was on respondent to show the invalidity of the original incorporation proceedings, petitioners have alleged the validating acts as a defense to the action. In my opinion it was their burden to bring themselves within the terms of the statutes. If the application of the validating acts turns upon any unresolved issue of fact, petitioners have waived the defense by failing to obtain or request a jury finding. Rule 279, Texas Rules of Civil Procedure.
There is no testimony showing the number of people which the census enumerators, found to be residing in the area embraced by the purported corporate limits of Impact. The record does not contain a special compilation of the Census figures applicable to that territory although the Federal statute apparently authorizes the Secretary of Commerce to furnish such information upon request. 13 U.S.C.A. § 8. We have only the official report of the 1960 Federal Census for the State of Texas, hereinafter referred to as the census report, a copy of' which is attached to one of respondent’s, briefs.
The Court says, in effect, that the information found in Tables 8 and 10 of the-census report shows conclusively and as a-matter of law that the population of Impact according to the 1960 Federal Census was not more than 4,500. I am unable to agree, with this conclusion. Table 8 is a list im alphabetical order of all places in Texas which the census officials regarded as incorporated, and of certain unincorporated' places containing more than 1,000 inhabitants, with the population of each according to the 1960 Federal Census. The listed cities and towns range in population from Belcherville and La Isla, each with 35 inhabitants, to Houston with its population of 938,219. With reference to the unincorporated communities, the introduction to the census report discloses that “the Bureau-has delineated boundaries for densely settled population centers without corporate-limits.” Neither Impact nor North Park is mentioned in Table 8, and the census report does not purport to show the population of either according to the 1960 Federal Census.
Table 10 is a compilation of the population figures for certain urbanized areas. The Abilene Urbanized Area is included in such list, but there is nothing in the census. report to identify the boundaries of that Area except a map found on page 46. This map, which contains no metes or bounds and does not purport to show either Impact or North Park, is approximately 5 inches by - *1513⅛ inches in size. The area which the census officials thought was bounded by the corporate limits of Abilene is indicated by hatched lines. North of and adjoining the hatched area is a small dotted area which •on the map is approximately ¼ inch by ¾6 inch in size. According to the legend accompanying the map, the latter was regarded by the census officials as an unincorporated area. One of the exhibits introduced in evidence is a large map of the territory generally known as North Park. The dotted area on the census map appears to have the same general contours as the area identified on the large map as North Park. While this might be sufficient to raise an-issue of fact, it certainly does not establish as a matter of law that the inhabitants of Impact or North Park were included by the census authorities in their compilation for the Abilene Urbanized Area or were not included in the figures for the City of Abilene.
The Court assumes that the people residing in Impact were not included in the population figures for Abilene. It then assumes that Impact 'must lie wholly within or wholly without the Abilene Urbanized Area. On the basis of these assumptions, the •Court reasons: (1) If Impact lies wholly within the Abilene Urbanized Area, it can be shown to fall within the statutory classifications by subtracting the population figures for Abilene from those for the Abilene Urbanized Area; and (2) If Impact lies wholly without the Abilene Urbanized Area, the community is shown to have less than 1,000 inhabitants according to the 1960 Federal Census by the fact that it is not mentioned in Table 8. What is the basis for reaching these conclusions as a matter of law? The record contains no information which shows definitely where the census authorities located the city limits of Abilene or the boundaries of the Abilene Urbanized Area on the ground. The mere ■fact that an area which someone has sought to incorporate is not mentioned in Table 8 does not conclusively establish that the census enumerators found less than 1,000 people residing there. Its absence from the list might be due to the fact that the responsible census authorities did not regard it as a “densely settled population center.” The Court apparently is saying that in view of the information found in the record with reference to the number of acres covered by Impact and North Park, one or the other would probably have been regarded by the census officials as a “densely settled population center without corporate limits” and thus would probably have been included by them in Table 8 if it contained more than 1,000 inhabitants. And yet the criteria by which such officials determined whether a given area was a “densely settled population center” are not disclosed by the census report or by the record in this case.
It might be proper for the trier of fact to resort to this process of reasoning, but petitioners have not obtained jury findings or requested issues to establish the facts on which the majority holding is based. The inferences drawn by the Court from the facts proven and the information contained in the census report appear to be reasonable, but it seems rather strange for a court of law to indulge in assumptions and inferences whose soundness has not been established as a matter of law. Entirely aside from this problem, however, the mere fact that the Court must resort to assumptions, probabilities, and inferences demonstrates rather convincingly that the 1960 Federal census figures at our disposal do not affirmatively declare and attest that the census enumerators found not more than 4,500 and not more than 6,000 people residing in Impact.
I would affirm the judgment of the Court of Civil Appeals.
STEAKLEY, J., joins in this dissent.