Cook v. Court of County Com'rs of Walker County

• Decision Date: 29 June 1912
• Citation: 59 So. 483,178 Ala. 394
• Parties: COOK ET AL. v. COURT OF COUNTY COM'RS OF WALKER COUNTY.
• Court: Alabama Supreme Court

59 So. 483

178 Ala. 394

COOK ET AL. v. COURT OF COUNTY COM'RS OF WALKER COUNTY.

Supreme Court of Alabama

June 29, 1912

Appeal from Law and Equity Court, Walker County; T. L. Sowell Judge.

Common-law certiorari by Wm. Cook and others to the Court of County Commissioners of Walker County to quash an order establishing the stock law district. From a decree dismissing the writ petitioners appeal. Affirmed.

The return to the writ showed 69 signers to a petition alleging that they were bona fide freeholders residing in precinct No 4, and owning a freehold estate in said precinct, but not alleging that they constitute a majority of the freeholders of said beat or precinct, asking that an election be held to ascertain whether or not a majority of the qualified electors desire or favor a law prohibiting stock from running at large in said precinct. The judge found that they constituted a majority of the bona fide freeholders residing in said precinct and ordered an election, upon compliance with the statutory provision, and, in accordance with the statutes made and provided, set a day for the election and appointed managers and clerks and a returning officer. The return also showed an election held wherein 77 voted stock law and 61 voted no stock law. The return also showed a proper order and judgment establishing stock law in said precinct, and finding that it was outside of an incorporated town or city. Objection to the return was taken by motion to strike the paper purporting to be the petition, and also striking the order establishing the district, for various infirmities noted in the motion.

Ray &amp Cooner, of Jasper, for appellants.

Bankhead & Bankhead, of Jasper, for appellee.

MAYFIELD J.

This is common-law certiorari, to quash or annul the proceedings had in the commissioners' court of Walker county, by which a stock law district for beat 4 of that county was established. The law and equity court of Walker county awarded its fiat or allocatur to the commissioners' court, on the petition of the appellants. The commissioners, in response to the writ, answered by certifying a transcript of the proceedings establishing the stock law district. On the hearing, after the proceedings were so certified, the law and equity court declined to quash the proceedings in the commissioners' court, and dismissed the petition of appellants. From that order the petitioners prosecute this appeal.

The first seven assignments of error go to the refusal of the lower court to strike certain parts, and the whole, of the return made by the commissioners' court to the writ. The appellants can take nothing by these assignments. While the court, we suppose, might strike parts or the whole of a return, if the matter certified is improper, surplusage, and wholly irrelevant and insufficient, yet it is not error for the court to decline to so strike. The result is that if the proceedings, or the transcript thereof, is insufficient to show jurisdiction on the part of the commissioners' court to establish the district as the statute directs, the revisory court will quash and annul the proceedings establishing the district, in accordance with the petition. If the proceedings show mere irregularities or defects not going to the jurisdiction of the commissioners' court, then the proceedings are not absolutely void, and will not and should not be quashed.

The return should consist of a full and complete transcript of the record or proceedings sought to be reviewed if the writ so orders, for the reason that the trial is on the answer and return, and is limited to...