Butler v. Walker

• Decision Date: 17 May 1893
• Citation: 98 Ala. 358,13 So. 261
• Parties: BUTLER ET AL. v. WALKER ET AL.
• Court: Alabama Supreme Court

13 So. 261

98 Ala. 358

BUTLER ET AL. v. WALKER ET AL.

Supreme Court of Alabama

May 17, 1893

Appeal from circuit court, Crenshaw county; John P. Hubbard, Judge.

Petition by H. H. Butler and others, praying the issuance of a rule to John M. Walker and others, intendant and councilmen of the town of Rutledge, to show cause why they should not be ousted from their respective offices. From a judgment denying the petition and dismissing the same, petitioners appeal. Affirmed.

Gamble & Bricken, for appellants.

I. H.

Parks for appellees.

McCLELLAN J.

The proposition that a municipal charter is not forfeited by nonuser for any period of time, and that to this end there must be legislative action by repeal of the act of incorporation, or judicial action adjudging forfeiture, may be conceded, for all the purposes of this case, to be thoroughly established; indeed, we entertain no doubt of their soundness. But it is equally clear, we think, that, the legislature having plenary power in the premises, may create such corporations conditionally,-that is, make provision for corporate existence upon a vote of the people within the territorial limits of the proposed corporation accepting the franchises privileges, and immunities granted in the act, and also, as a corollary to this power, to prescribe a condition precedent,-the charter act may provide a condition subsequent to continued corporate existence, or even may absolutely limit the duration of the corporation it creates; in either of which cases the provision is no more than a precedent legislative determination and declaration of forfeiture or surrender of corporate existence at a certain time or upon the happening of a certain event, and is, to our minds, as efficacious to the destruction of corporate entity as would be contemporaneous legislative abrogation of the charter. We are therefore of the opinion that it was entirely within legislative competency to make provision in the act of March 8, 1871, chartering the town of Rutledge, for the dissolution of the corporation upon an event therein specified, and that the clause of that act which is in this language: "If there should be a failure to hold the annual election for intendant and councilmen on the day mentioned in this act for that purpose, then all the powers, rights, privileges immunities, and franchises hereinbefore or hereinafter conferred on the said intendant and council as a corporation shall forever cease and determine, and be of no force and effect whatever,"-is a sufficient legislative determination and declaration of dissolution, in and of itself working corporate destruction ipso facto on the happening of the condition upon which it was intended to become operative. That the condition did transpire-that there was a failure to hold the annual election-within a year or two after the original organization of the municipality under the act, and for each year since that time, is admitted in this case; and we feel safe in the conclusion that this failure of the corporation to comply with the organic law of its existence entailed upon it the destructive consequences prescribed by that law, and that the town of Rutledge thereupon became as if it had never been erected into an incorporation at all. There was, therefore, no legal impediment to the subsequent incorporation of the town of Rutledge under the general law then embodied in the Code of 1876, §§ 1763-1802, as amended by acts passed in 1879 and 1881, and now, with these amendments, constituting section 1486 et seq. of the Code of 1886; and the town was in fact duly and regularly incorporated under that law in the latter part of the year 1881. There is no provision for forfeiture of incorporation for nonuser or other cause in the general law. There has been no legislative declaration of forfeiture, and no judicial dissolution of that corporation since then. On the principles stated in the outset of this opinion, and to the soundness of which counsel upon either hand subscribe, that corporate entity has existed at every moment of time since the decree of the probate judge to that end was rendered, and it exists to-day, notwithstanding organization under it, which was regularly perfected upon the passing of the decree, was not kept up; the fact being, the officers elected for the year 1883, after entering upon the discharge of their duties and discharging them for a time, ceased so to do before the expiration of their terms, and afterwards for several years no elections were held.

It may be said to be axiomatic that two distinct charters for...