McGraw v. Court of County Com'rs

• Decision Date: 17 June 1890
• Citation: 89 Ala. 407,8 So. 852
• Court: Alabama Supreme Court
• Parties: MCGRAW ET AL. v. COURT OF COUNTY COM'RS.

8 So. 852

89 Ala. 407

MCGRAW ET AL. v. COURT OF COUNTY COM'RS.

Supreme Court of Alabama

June 17, 1890

Appeal from circuit court, Greene county; S. H. SPROTT, Judge.

This is an appeal from the judgment of the judge of the circuit court of Greene county, refusing the writ of certiorari. The appellants filed their petition to the judge of the circuit court of Greene county, asking that a writ of certiorari be granted to the court of county commissioners requiring them to certify to the next term of the circuit court a transcript of the proceedings, on an application by certain freeholders of a certain district in said county to have established "a district wherein stock may not be allowed to run at large." In the application to the court of county commissioners for the establishment of said district wherein stock may not be allowed to run at large, the said court refused to count or consider only those who were bona fide freeholders and not those who were made so by being given a mere inconsiderable amount of land; and then ordered the establishment of said district. It was to set aside this order that certiorari was asked for. The judge of the circuit court refused to grant the writ, and the petitioners now appeal, and assign his refusal as error.

G B. Mobley, for appellants.

Judge & De Graffenreid, for appellee.

STONE C.J.

We concur with Hon. S. H. SPROTT in holding that petitioners (appellants) are not entitled to a writ of certiorari in this case. The act under which the proceedings were had, approved February 17, 1885, (Sess Acts, 580,) is clearly constitutional. Stanfill v. Court of County Revenue, 80 Ala. 287. And we think the court of county commissioners of Greene, in ascertaining the sense or wish of the freeholders of the district in which it was proposed to prohibit stock from running at large, rightly refused to count or consider as freeholders those persons to whom an inconsiderable fraction of land had been conveyed, solely for the purpose of enabling them to vote, or express their desire in the matter of establishing such district. The sense of the law is that only resident freeholders in fact, not in name, shall have a voice in determining the issue, as is clearly manifest in every aspect of the statute, express or implied. In the sense in which the commissioners intended to be understood, there can be no substantial difference between freeholders and bona fide freeholders.

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