Cooper v. Town of Valley Head

• Decision Date: 06 November 1924
• Docket Number: 7 Div. 501.
• Citation: 212 Ala. 125,101 So. 874
• Parties: COOPER v. TOWN OF VALLEY HEAD.
• Court: Alabama Supreme Court

101 So. 874

212 Ala. 125

COOPER v. TOWN OF VALLEY HEAD.

7 Div. 501.

Supreme Court of Alabama

November 6, 1924

Appeal from Circuit Court, De Kalb County; W. W. Haralson, Judge.

Prosecution by the Town of Valley Head against Nevil Cooper, for violation of an ordinance prohibiting intoxication. From a judgment of conviction, defendant appeals. Transferred from Court of Appeals, under Acts 1911, p. 449,§ 6. Affirmed.

Isbell & Scott, of Ft. Payne, for appellant.

H. T Bailey, of Ft. Payne, and W. T. Murphree, of Gadsden, for appellee.

BOULDIN J.

Appellant was convicted of violating a penal ordinance. By sworn plea the existence of the Town of Valley Head as a municipality was put in issue.

Formerly a municipal corporation was usually created by special grant of the Legislature. The charter being evidenced by a public act of the legislative department of the state, the courts took judicial notice of its existence and the extent of its powers.

Later provision was made for organization, under general law, and by the Constitution of 1901 this became the sole method of incorporating a town. Const. 1901, § 104 (5).

Courts do not take judicial notice of the organization of a town or village under the general law. 22 C.J. p. 91, § 1882.

Still in the exercise of the police powers conferred thereon, it is essentially a public agency, a local unit of government, invested with a portion of the sovereign power of the state, for the benefit of its inhabitants.

The law does not favor collateral attack on such municipality, while in the exercise of these powers. When its existence as such is challenged, the court need do no more than ascertain its existence de facto.

In defining a de facto municipal corporation, in 28 Cyc. p. 172, it is said that, avoiding extremes on both sides, and taking the concensus of opinion, the essentials are these:

"(1) A valid statute authorizing incorporation; (2) an organization in good faith under it; (3) a colorable compliance with the law; and (4) an assumption of corporate powers."

The court will take judicial notice of the general statutes authorizing incorporation. The other three conditions named may be the subject of legal evidence. What is legal evidence presents the chief question here. Our statutory proceedings for incorporation are begun by petition signed by the required number of qualified voters, setting forth the jurisdictional facts, accompanied by a plat of the proposed corporate territory, filed with the judge of probate. The judge of probate ascertains by proof the fact of residence and qualification of petitioners. Code 1907, § 1053. He then orders an election on the question of "corporation" or "no corporation," and gives the required notice thereof. Code 1907, § 1055.

On coming of the returns, he causes enumeration of the inhabitants, and, on a return thereof, makes "an order to be entered of record on the minutes of the court, that the inhabitants of such territory are incorporated as a town or city; *** thereupon such town or city shall be vested with the rights and powers herein granted, incident to such incorporations."

In State ex rel. Allen v. Town of Phil Campbell, 177 Ala. 204, 58 So. 905, a direct attack by quo warranto, the orders of the court under the present statute are declared judicial in character. In direct proceedings by quo warranto, these judicial proceedings must speak by the record. The jurisdictional facts must appear. State ex rel. Wagnon v. Town of Altoona, 200 Ala. 502, 76 So. 444.

In the recent case of State ex rel. Cooper v. Ellis (Ala. Sup.) 100 So. 866, a quo warranto proceeding to test the validity of the incorporation of the Town of Valley Head, we held that the court of probate had the inherent power to substitute lost records, and, having done so, it became a corporation de jure.

In the case at bar, the court below, on proof of the loss of the records, admitted secondary evidence of the filing and contents of the petition and plat, issuance of the notice of election by the judge of probate and its publication, the election and returns, the enumeration of inhabitants, election of municipal officers, and their assumption of duty. The book of ordinances and minutes of proceedings were identified and admitted as evidence of municipal activity. Notwithstanding a failure of the judge of probate to make a record of the proceedings and the proper minute entries, this evidence was admissible as showing a bona fide effort of the people to incorporate, a colorable compliance with the law, in so far as in their hands, and the setting up of a going municipal government.

In Alabama, where every citizen is vested with the power to use the name of the state in quo warranto proceedings, for direct attack upon any usurpation of corporate and official power, the higher good will be promoted by closely limiting the right of collateral attack upon the existence of a municipality permitted to exist by the state, and to exercise governmental functions. The trial court correctly so held. 19 R. C. L. p. 703, § 14; 28 Cyc. p. 174.

Municipal ordinances must be proven, on prosecutions for their violation.

In Barnes v. Common Council of Alexander City, 89 Ala. 602, 7 So. 437, it was held, in the absence of a statute, that, upon parol proof identifying the ordinance book of the town in which the ordinance was recorded, it became prima facie evidence of the ordinance; that proof of the existence and identity of the ordinance offered was all that is required, until some showing is made that there was irregularity in the enactment of the ordinance; and that, upon such showing being made, recourse should be had to the journals of the town meeting, and from them it must appear that every essential step in the enactment of the law has been taken. This case arose prior to the Act of February 18, 1895, now section 3989 of the Code of 1907. This later statute, appearing in the chapter on Documentary Evidence, declares ordinances self-proving in two classes of cases: (1) A printed code or revision of by-laws or ordinances (a) purporting, on the face of the book, to be printed by authority, or to be a code of by-laws or ordinances of the municipality, or (b) when the book has thereon the certificate of the clerk or recording officer under his hand that it is an official publication of ordinances of the municipality; (2) any ordinance or by-law certified by such official as correct. These are made "prima facie evidence of the due adoption and continued existence of the by-laws or ordinances therein printed, or so certified as correct, without further proof."

Section 1258, Code of 1907 (Acts 1915, p. 735), provides for publication and recordation of ordinances. The certificate of the clerk appended to the record, stating the time and manner of publication, is made presumptive evidence of the facts therein stated.

Section 1259 makes ordinances, purporting to be published by authority of the council in book or pamphlet form, competent evidence, without further proof.

Again, section 1220 of the Code of 1907 provides:

"On the trial of any cause in

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