Meeks v. Town of Hoover

• Decision Date: 15 October 1970
• Docket Number: 6 Div. 758
• Citation: 286 Ala. 373,240 So.2d 125
• Parties: J. Paul MEEKS, as Judge, etc. v. TOWN OF HOOVER, Alabama, etc.
• Court: Alabama Supreme Court

Page 125

240 So.2d 125

286 Ala. 373

J. Paul MEEKS, as Judge, etc. v. TOWN OF HOOVER, Alabama, etc.

6 Div. 758.

Supreme Court of Alabama.

Oct. 15, 1970.

Irvine C. Porter, Birmingham, for appellant.

Beavers, Shannon, Harrison & Odom, Birmingham, for appellee.

McCALL, Justice.

This is an appeal by Honorable, J. Paul Meeks, Judge of Probate of Jefferson County, Alabama, from a final decree rendered by the circuit court in a declaratory judgment suit, in equity, which was favorable to the complainant, Town of Hoover, a Municipal Corporation. The litigation came about by the filing of a petition with Judge Meeks to incorporate a municipality known as Green Valley, in Jefferson County, Alabama, pursuant to Tit. 37, § 10, Code of Alabama, 1940, as amended.

The incorporation proceeding culminated in this court's holding in the case of Watts v. Town of Green Valley, 282 Ala. 555, 213 So.2d 398, on a direct appeal from orders of Judge Meeks that the appellant was without jurisdiction to act in the matter of the incorporation, because one of the necessary condition precedents to establish his jurisdiction was proved to be lacking in that a party signing the petition for incorporation was not a qualified elector as required by the statute, Tit. 37, § 10. After vacating his orders, looking toward an incorporation of the municipality, Judge Meeks proceeded with entertaining an amendment to the original petition which seeks to overcome the jurisdictional deficiencies and prays that another election date be set to determine whether the town shall be incorporated. Thereupon, the Town of Hoover, a duly incorporated and existing municipality, filed its bill in equity in the present case against the probate judge for a declaratory judgment, alleging among other matters that the territory sought to be incorporated consists of lands which lie within three miles of its corporate limits; and, further, that the proceeding to incorporate has been declared void. The bill, further alleging that the appellant intends to hold another election pursuant to the amended petition, seeks to enjoin him as probate judge from proceeding with the incorporation under the amended petition.

The appellant contends that the Supreme Court holding in Watts does not bar him from entertaining the proposed amendment to the petition to incorporate, which would correct the jurisdictional deficiencies. The appellant insists that he retains jurisdiction to entertain an amendment to the petition as long as the proceedings are in progress that would overcome these jurisdictional deficiencies. This amendment, if effective, would strike from the property description in the original petition for incorporation, six parcels of land extending across the quarter-quarter section lines so as to make the incorporated area more compact and homogeneous. It would eliminate the disqualified elector as well as other persons named residing in the stricken area. It would accurately describe the reduced amended area and substitute a corrected map for that attached to the original petition. The appellant further contends that such an amendment would relate back to the time of the filing of the original petition, Tit. 7, § 239, Code of Alabama, 1940. So the question follows: Might those who are qualified and who filed the original petition, amend in the manner stated, so that the requirements, essential to land area and parties will be met? The bill seeks a determination of this and other issues raised under the judgment of this court in Watts. We think such a bill presents a subject, cognizable for declaratory relief. In Avery Freight Lines v. White, 245 Ala. 618, 624, 18 So.2d 394, 399, the court said:

'* * * 'A real and substantial controversy over the effect of a judgment presents a ground for relief under the Declaratory Judgment Act.' Aetna Life Ins. Co. v. Martin, 8 Cir., 108 F.2d 824, 826; Board of Commissioners, etc., v. Cockrell, 5 Cir., 91 F.2d 412. See Bond v. Avondale Baptist Church, 239 Ala. 366, 194 So. 833.'

In the related case of Watts v. Town of Green Valley, 282 Ala. 555, 213 So.2d 398, supra, this court held that, since one of the necessary four alleged electors residing on one of the quarter-quarter sections of the territory included in the incorporated area, who signed the petition for incorporation as a resident pursuant to the incorporation statute, actually was not a qualified elector at the time he signed the petition, as shown on the face of the record, the probate judge should have granted Watts' motions seeking to vacate the probate Judge's orders for the reason that they probate judge's orders for lacked jurisdiction in the matter. The orders referred to and ordered to be vacated and set aside, were those (1) directing the holding of an incorporation election to determine whether the Town of Green Valley should be incorporated and the election held pursuant thereto, (2) the order of incorporation of Green Valley entered on April 15, 1968, and (3) the order of April 15, 1968, ordering an election of a mayor and five councilmen of the Town of Green Valley. This court said in part in Watts, supra:

'* * * Viewing the record of the probate court proceedings, it is clear from such record now before this court by transcript and bill of exceptions, that the court was without authority to enter its decrees from which rulings of that court this appeal was taken.

'When the evidence clearly established lack of jurisdiction over the subject matter, The proceedings should have ended for they were void. Hartigan v. Hartigan 272 Ala. 67, 128 So.2d 725, supra; Pickens v. Clark, 203 Ala. 544, 84 So. 738, supra. We think it is unrefuted from the evidence, as established by the transcript and bill of exceptions, that A necessary criterion or condition precedent was non-existent. Therefore, the probate court lacked jurisdiction.' (Emphasis added)

The appellant urges us to reconsider the Watts decision and overturn it as being erroneous and contrary to all previous decision law of this state on the issues at hand. The appellant advances no substantially new or different reason or authority for our overruling Watts from what has already been considered by the court on that appeal. We are not disposed therefore to reverse our decision in Watts.

In the case of Bridges v. City of Biloxi, 250 Miss. 717, 168 So.2d 40, the Supreme Court of Mississippi held where a statute required that the petition for incorporation of a municipality be signed by at least two thirds of the qualified voters in the territory to be incorporated, that once the petition is filed, amendments thereafter cannot be made so as to include the names of additional petitioners.

We do not think that petitioners can do indirectly, that which they cannot do directly in order to give the petition validity. If there was originally an insufficiency of bona fide electors to the petition, which cannot be remedied by adding additional electors, then neither can the fault be remedied by reducing the land area to be incorporated in order to gain the requisite number of qualified electors in each of the quarter-quarter sections.

In McQuillin Municipal Corporations, 3rd Ed., Vol. I, § 3.27, p. 560, this rule is stated:

'The court or board to which a petition for incorporation is presented has no authority to alter or amend the description in the petition of the territory sought to be incorporated, or to permit a substantial amendment of the boundaries, except where the amendment does not change the area to be incorporated, and in some states where farm lands are excluded by amendment at the request of the party aggrieved.'

To the same effect is a statement in 62 C.J.S. Municipal Corporations § 17, p. 96, where it is stated:

'Material and improper alterations of a petition for incorporation after it has been presented or filed may render the subsequent proceedings void, and it may not be altered or amended so as to correct a material mistake in the description of the territory to be included, but the court may, while the matter is pending and all the parties are represented, permit an amendment of the petition so that it will comply fully with the statute in a matter of form.'

71 C.J.S. Pleading § 288b, p. 638, jurisdictional matters, gives the following statement:

'It has been held that the original pleading in an action commenced in a manner violating an express statutory prohibition going to the jurisdiction of the court is not amendable, and that, Where a tribunal is of special and limited jurisdiction, if the facts on which jurisdiction rests do not appear, the court has no jurisdiction to permit them to be supplied by amendment. * * *' (Emphasis added)

Then in State ex rel. Lantz v. Board of Trustees of Franklin Tp., Franklin County, 147 Ohio St. 256, 70 N.E.2d 890, the court said:

'The board of trustees was without authority to alter or amend the description in the incorporation petition and thereby change the description of the territory as set forth in that petition at the time it was signed by the electors and at the time it was subsequently presented to the board of trustees.'

The assent of those, required under Tit. 37, § 10, Code of Alabama, 1940, was obtained and given as to those matters embraced in the original written petition by their signing it. Such assent was to the petition as originally filed, not in its amended form. The proposed amendment would change the property description...