On Motion for Rehearing
On motion for rehearing, we have made a 'complete re-examination of our former opinion, but we adhere to our holding that the Water Control and Improvement District was legally organized by reason of the substantial compliance with the requirements of Article 7880-115. This case does not present a situation where there was a spontaneous election, or where there was an absence of a proper call, order or notices. Cunningham v. State, 119 Tex.Cr.R. 572, 44 S.W.2d 739, Coffee v. Lieb, Tex.Civ.App., 107 S.W.2d 406, and Ex parte Conley, Tex.Cr.App., 75 S.W. 301, require a stricter rule of compliance than does the Troell case, decided by this Court in 1919, and cited in our opinion; but all of those cases, including the Troell case, concern the failure to give the correct election notices.
Mr. Justice Brown, writing for the Supreme Court in State ex rel. Perrin v. Hoard, 94 Tex. 527, 62 S.W. 1054, 1055, announced the rule which controls our decision. By quo warranto the State attacked the validity of an incorporation of a town in Hunt County. The applicable, statute stated the necessary steps for the incorporation. The statute stated in part: “ ‘At least twenty residents thereof, who would be qualified voters under the provisions of this chapter, shall * * * (stating certain requirements), and accompany the same with a plat of the proposed town or village, and including therein no territory except that which is intended to be used for strictly town purposes.’ ” The court held that the failure to attach the plat was not invalidating, but that it was required by the statute only “in aid of a description which is sufficient in itself to secure the rights of all persons.” Said the Court: “It is direc*676tory, and a failure to perform it will not defeat the incorporation.” Despite the, requirements of the statute that a plat he attached to the application, State v. Hoard holds that such a plat is not always necessary. The case has not been departed from and is often cited for the proposition that a substantial compliance with the statute fulfills the incorporation requirements. State ex rel. Wilke v. Stein, Tex.Com.App., 26 S.W.2d 182, 184; Gray County Production Co. v. Christian, Tex.Civ.App., 231 S.W.2d 901; Wilson v. Brown, Tex.Civ.App., 145 S.W. 639, 642; State ex rel. Edwards v. Montgomery, Tex.Civ.App., 140 S.W. 385; 30 Tex.Jur., Municipal Corporations, § 7.
The same principle of substantial compliance has been applied in other instances. A non-compliance with a statutory requirement that a county judge within twenty days after receipt of returns, shall record in the deed records a copy of the entry of incorporation made by the county judge upon the records of the commissioners’ court did not invalidate the incorporation of a town. The court held the requirement directory, and, with reference to mandatory requirements, stated that a substantial compliance fulfills the law. State ex rel. Nelson v. Peterson, Tex.Civ.App., 29 S.W. 415.
The Commission of Appeals in State ex rel. Oil Operators’ Trust v. Hellman, 120 Tex. 282, 36 S.W.2d 1002, held that Article 961 of the 1925 statutes was substantially complied with when a resolution of a town council to incorporate as a city was passed at a meeting of the town council, though the meeting was irregularly called. This result was achieved in spite of a provision in Article-961, which stated negatively: “The provisions of this title shall not apply to any city, town or village until such provisions have been accepted by the council in accordance with this article.”
The last negative sentence of Article 7880-115, provides that no district which embraces “a .town, city or municipal corporation shall include lands outside of such municipal corporation unless the election held therein to confirm and ratify the formation of such district shall be adopted thereby independent of the vote in such municipal corporation.” Thére was such an independent determination by any process of thinking. The vote was unanimous. Those who voted and who resided outside the municipal corporation, made known their majority intent, independent of the votes cast by those residing inside the municipal corporation. An independent manifestation was the-declared purpose of the statute, and that purpose was fully served under the facts of the case. .
In the motion for rehearing, the State for the first time raises the point that the district included an area of submerged lands on which oil and gas leases exist and that such submerged area does not constitute “lands,” which the State contends the statutes require. We have, examined the State’s petition for quo warranto and it challenges the validity of the organization only because of a claimed non-compliance with Article 7880-115. The other relators by a supplemental petition raised the question whether the district included an area not properly called “lands,” but that portion of the case was severed. The State in its opening statement to the trial court, as reflected by the statement of facts, again so limits its complaint when' it says: “It is our position in this petition that the District, or attempted consummation of the District is a nullity and the election and order confirming said District are wholly void in that in holding the election to confirm said District the mandatory provisions of Subdivision 115 of Article 7880, Revised Civil Statutes of Texas, were not complied with.” The statement of facts reveals no attack upon the organization proceedings with reference to “lands,” and the case was not tried on that issue either directly nor indirectly. State ex rel. Sutherland v. Pease, Tex.Civ.App., 147 S.W. 649.
The motion for rehearing is overruled.