Elmore County v. Tallapoosa County

• Decision Date: 16 January 1930
• Docket Number: 5 Div. 21.
• Citation: 128 So. 158,221 Ala. 182
• Parties: ELMORE COUNTY v. TALLAPOOSA COUNTY.
• Court: Alabama Supreme Court

128 So. 158

221 Ala. 182

ELMORE COUNTY v. TALLAPOOSA COUNTY.

5 Div. 21.

Supreme Court of Alabama

January 16, 1930

Rehearing Denied May 15, 1930.

Appeal from Circuit Court, Tallapoosa County; S. L. Brewer, Judge.

Bill in equity by Tallapoosa County against Elmore County to establish a boundary line. From a decree overruling a demurrer to the bill, respondent appeals.

Affirmed.

Holley & Milner, of Wetumpka, and Martin, Thompson, Turner &amp McWhorter, of Birmingham, for appellant.

Jacob A. Walker, of Opelika, J. Sanford Mullins, of Alexander City and Steiner, Crum & Weil, of Montgomery, for appellee.

THOMAS J.

The bill to which demurrer was directed was by the county of Tallapoosa against the county of Elmore, and the same was filed in the circuit court of the former county. Its purpose was to establish and define the true boundary line at a certain and designated locality between the two counties. That pleading sets forth and defines the line which appellee insists is the true line.

It is also alleged in paragraph 11 of the bill "that from time immemorial, to wit: December 18, 1832, Tallapoosa County has been in possession of and exercised sovereignty, dominion and jurisdiction over the territory now in dispute between said Counties, as aforesaid, and that from and after February 15 1866, the date when Elmore County was created, or attempted to be created, Tallapoosa County did, for a half century, and until recent date, exercise sovereignty, dominion and jurisdiction over all of the territory in dispute between said Counties up to the West bank of the Tallapoosa River, and said West bank of said River has, during all of said years, been taken and accepted as the true boundary line between said Counties by the inhabitants of both Elmore and Tallapoosa Counties; and that Elmore County, in its corporate and political capacity, as well as the inhabitants of said County, during all of said years, and until recently, have recognized the West bank of the Tallapoosa River as the true boundary line between the said Counties, and said County of Elmore, and its inhabitants have, during said years, and until recently, acquiesced in the exercise of sovereignty, dominion and jurisdiction by Tallapoosa County over the territory now in dispute, up to the West bank of the Tallapoosa River."

Demurrer directed thereto raised the question of lack of jurisdiction, that of the venue of such action, and the corporate entity of the parties as affecting the right to be made parties to the suit; that is, the jurisdiction of the circuit court of Tallapoosa county is also challenged on the question of venue,-that only the court in the county of Elmore had the jurisdiction to hear and determine the controversy. From a decree overruling demurrer, defendant county of Elmore appealed.

It is averred that complainant is a body corporate duly organized and constituted, and exercising the function and jurisdiction of such body within the state under and by Act of the General Assembly approved December 18, 1832; and the county of Elmore was the result of the Act of the General Assembly approved February 15, 1866, page 484. It is further averred of the respective insistences of the two counties:

"Complainant shows unto Your Honor that the boundary line between it and the Respondent is in dispute, Complainant claiming its Western boundary line, where it touches Elmore County, to be either, (1) that originally constituted by the Act of the General Assembly approved December 18, 1832, to-wit: The range line dividing ranges 20 and 21, or (2) the line fixed by the Act approved February 15, 1866, to-wit, the West bank of the Tallapoosa River. But the Respondent claims that the territorial extent and jurisdiction of the Complainant extends in a westerly direction no further than the median line or thread of the stream of the Tallapoosa River."

"*** The West boundary of Tallapoosa County intersects said dam at a point defined and located as follows: Begin at the Northwest corner of Section 36, T. 20 N., R. 21 E, in Elmore County, Alabama, and run South 139 feet, thence turning an angle 88 degrees and 50 minutes to the left, taking a course South 88 degrees and 50 minutes East, run 2541 feet. This is the point of intersection of the West boundary of Tallapoosa County with said dam. But Respondent claims that the boundary line between said counties at said point lies 125 feet, more or less to the East of the point above defined, that is, at a point coinciding with the median line or thread of the stream of the Tallapoosa River, and Elmore County is now exercising jurisdiction over and collecting taxes upon all that part of said dam, power plant and appurtenances lying West of the median line or thread of the stream of said Tallapoosa River."

We have indicated the averments or further insistence of Tallapoosa county of the immemorial exercise of sovereignty in the territory in question.

It is further averred that all of the dam, power plant, and other appurtenances at said Martin dam are in Tallapoosa county; that "for a distance of 125 feet East of the West line of Elmore County at said dam, and in Tallapoosa County, and that there are other dams and properties along said River over which Elmore County has been lately exercising jurisdiction, and on which properties it has been collecting taxes up to the median line or thread of said River, and the Complainant avers that the taxes so collected by Elmore County have been illegally collected; that said taxes so collected belong to Tallapoosa County, and that the amount of taxes so illegally collected by Elmore County should be ascertained, accounted for and returned into the County treasury of Tallapoosa County." It is further averred that Elmore county is collecting the taxes on said property for said distance indicated above. And by amendment it is alleged that the territory in dispute in fact lies wholly within the limits of Tallapoosa county.

As to the constitutionality of the act creating Elmore county, it is averred, among other things, that "the House of Representatives of the General Assembly of 1865-66 consisted of One Hundred and One (101) members, being one member in excess of the number permitted by each of said Constitutions; and that the Senate of said General Assembly consisted of Thirty-Four (34) members, which was one Senator more than the number allowed by each of said Constitutions.

"(c) And complainant avers that said House of Representatives and Senate were illegally organized in contravention of the limitations as to membership imposed by each of said Constitutions, and avers that the said Act of February 15, 1866, passed by said General Assembly to create the new County of Elmore, was and is unconstitutional and void;" that the Constitution of 1819, Section 9, article 3, and as amended in 1850, and section 6, article 4, of the Constitution of 1865, contained "a provision guaranteeing to each County one representative in the House of Representatives of the General Assembly, and complainant avers that in the House of Representatives of the General Assembly of 1865-66 there was the full quota of One Hundred (100) members permitted by each of said Constitutions, and that by reason of this fact the General Assembly had no power or authority to then provide the newly created County of Elmore with a Representative in the House of Representatives, and Complainant avers that the Act of February 15, 1866, passed by said General Assembly to create Elmore County was in violation of those provisions of said Constitution guaranteeing to each County one Representative in the House of Representatives, and avers that said Act of February 15, 1866 was and is unconstitutional and void."

The prayer of the bill is for the establishment of the true boundary line between the counties, and for accounting for taxes collected by Elmore county on property within disputed territory.

The existence, geographic area, and boundaries of all counties in this state are matters of which the court takes judicial knowledge, and have been recognized, ratified, and confirmed by the adoption of the several Constitutions. Hodge v. Joy, 207 Ala. 198, 92 So. 171; Ullman Bros. v. State, 16 Ala. App. 526, 79 So. 625, and authorities. In the Constitution of 1875, article 2, section 2, is contained in the recital that "the boundaries of the several counties of this State, as heretofore established by law, are hereby ratified and confirmed. The general assembly may, by a vote of two-thirds of both houses thereof, arrange and designate boundaries for the several counties of this State, which boundaries shall not be altered, except by a like vote."

The provision in article 2, section 2, of the Constitution of 1868, that "the General Assembly may, by a two-thirds vote of both houses thereof, arrange and designate boundaries for the several counties of this State, which boundaries shall not be altered, except by a like vote," is also contained in the Constitution of 1865, article 2, section 2, and the Constitution of 1819, article 6, sections 16 and 17.

The opposite provision in the Constitution of 1901 is section 38, declaring "the boundaries of the several counties of this State, as they now exist [italics supplied], are hereby ratified and confirmed." The several counties are enumerated (including Elmore and Tallapoosa) in section 202 of the Constitution of 1901; section 6, article 9, Constitution of 1875; article 8, section 2, of the Constitution of 1868, operative June 25, 1868, or July 13, 1868; Code of 1876, p. 120, naming the counties of Tallapoosa and Elmore.

It is the common-law rule and that of our statute, section 6524 Code, that suits ex contractu must be brought in the court of the defendant coun...