Full text
Representative William J. Ervin
CITIES AND TOWNS — INCORPORATION OF AREA WITHIN THREE MILES OF EXISTING TOWN The use of the term "city" in the proviso portion of Il O.S. 971 (1971) wherein incorporating towns are prevented from including in their boundaries land laying within three or five miles of certain incorporated cities, prevents the incorporation of towns within the specified distances of cities and does not prevent their incorporation within any distance of another town.
The Attorney General has considered your request for an opinion, wherein you ask the following question "Under the provisions of 11 O.S. 971 [11-971] (1971), may a town be incorporated if the area to be incorporated lies within three miles of an incorporated town." (Emphasis added) The statute in question provides as follows: "Persons intending to make application for the incorporation of a town as hereinafter provided shall cause an accurate survey and map to be made of the territory intended to be embraced within the limits of such town; such survey shall be made by a practical surveyor, and show the courses and distances of the boundaries thereof, and the quantity of land contained therein, the accuracy of which survey and map shall be verified by the affidavit of such surveyor written thereon or annexed thereto; provided that no territory within five miles of the corporate limits of an incorporated city having a population of more than two hundred thousand, and no territory within three miles of the corporate limits of any incorporated city having a population less than two hundred thousand according to the latest Federal Decennial Census shall be included in such survey and map or incorporated as a town under the provisions hereof." (Emphasis added) The answer to your question requires an examination of Title 11 of the Oklahoma Statutes, entitled "Cities and Towns." This title of the statutes governs the creation, existence and operation of municipal governments within the State of Oklahoma.
Title 11 provides for the establishment of both cities and towns as forms of municipal government in Oklahoma. There are separate provisions in the statutes for the formation and operation of each form of municipal government. 11 O.S. 501 [11-501] provides the method for a city to become a town. 11 O.S. 551 [11-551] provides the method for a town, village or community to become a city. 11 O.S. 971 [11-971] provides the method for the creation of a town.
As can be seen from these statutes, and the general format of Title 11, the Legislature has created a distinction between cities and towns as forms of municipal government and further, that each form of government implies characteristics, obligations, duties and powers of its own. The term "city" and the term "town" have separate and distinct meanings in the statutes and are not used interchangeably.
It is a familiar rule of statutory construction that to include one thing in a statute and not another is to exclude the latter. State v. Cline, Okl. Cr., 332 P.2d 208 (1958). Following this rule, the omission of the word "town" implies that the word "town" is intentionally excluded and that the limitation provision in 11 O.S. 971 [11-971] applies only to the incorporation of towns within specified distances of incorporated cities.
It is, therefore, the opinion of the Attorney General that your question be answered as follows: The use of the term "city" in the proviso portion of 11 O.S. 971 [11-971] (1971), wherein incorporating towns are prevented from including in their boundaries land laying within three or five miles of certain incorporated cities, prevents the incorporation of towns within the specified distances of cities and does not prevent their incorporation within any distance of another town. (JAMES C. PECK) (ksg)