State ex rel. Kinney v. Town of Steppville

• Decision Date: 21 May 1936
• Docket Number: 6 Div. 957
• Parties: STATE ex rel. KINNEY v. TOWN OF STEPPVILLE et al.
• Court: Alabama Supreme Court

168 So. 433

232 Ala. 407

STATE ex rel. KINNEY v. TOWN OF STEPPVILLE et al.

6 Div. 957

Supreme Court of Alabama

May 21, 1936

Appeal from Circuit Court, Cullman County; W.W. Callahan, Judge.

Quo warranto proceeding by the State, on the relation of H.H Kinney, deputy solicitor of Cullman county, against the Town of Steppville and the mayor and aldermen thereof. From a judgment for respondents, petitioner appeals.

Affirmed.

H.H Kinney and Kenneth Griffith, both of Cullman, and S.A. Lynne of Decatur, for appellant.

James &amp Stewart, of Cullman, for appellees.

THOMAS Justice.

The proceeding in the circuit court was quo warranto to test the validity of the incorporation of the town of Steppville, and the legality vel non of the acts of its officials.

The minutes of the probate court in evidence disclose that the municipality was organized and incorporated (as New Hanceville, the name being subsequently changed), and has acted in good faith as such municipality since 1921, under the terms of sections 1053-1055 of the Code of 1907, and section 1744 of the Code of 1923.

We have examined the petition as passed upon and ascertained by the judge of probate to confer jurisdiction, and on which that official, the citizenship, electorate, and duly qualified voters resident in that territory were affected and acted upon in the premises. We hold the petition to have been a compliance with the law in the respect of incorporation.

The judgment shown by the record includes the material, ascertained facts, as conditions precedent to a valid municipal incorporation of the class of municipalities to which the statute has application. Among other things, the judgment recites:

"*** That upon the presentation and filing of said petition or application, it was held and decided by me as Probate Judge, as shown by an order made on the 26th day of August, 1921, and entered upon the minutes of the Probate Court in Vol. ______ [168 So. 434] Page ______ and herein again reentered, stated, held and decided that the territory described in said petition and the plat thereto attached was an unincorporated community, which said unincorporated community had a population of not less than one hundred inhabitants; that said territory therein described in said petition was situated in the county of Cullman, State of Alabama; that said petition was in writing and signed by not less than twenty-five qualified electors, each of whom resides within the limits of said proposed municipality; that said petition stated the proposed name of such municipality and had attached thereto and as a part thereof, an accurate plat of the territory proposed to be embraced (by) said corporate limits; that said petition complied with all the provisions of section 1053 of Article 2 of the Political Code of 1907; that sufficient proof was made to be as Judge of Probate, by oral testimony to show that each of said persons whose names were signed to said petition resides within the limits of said proposed corporation or municipality, and was and is a qualified elector and votor therein, and that in and by said order an election was directed, by me, as Probate Judge, to be held on Monday, the 22nd day of August, 1921, for the purpose of ascertaining and determining whether or not a majority of the qualified electors residing within the corporate limits of said proposed municipality as designated in the petition and the plat thereto attached and a part thereof, and filed with the said petition, favor incorporating said territory as a municipal corporation, under the name of the town of New Hanceville, and that the store room of J.T. Drake, which said place is located within the limits of said town was designated as a place for the holding of said election. ***

"That on the 26th day of August, 1921, *** election inspectors or managers *** certified to me, as Judge of Probate, the result of said election which said certificate was made and filed with me as Probate Judge by said inspectors, on the 26th day of August, 1921, same being within five days after the 22nd day of August, 1921, the day on which the election was so held; that at said election there were 41 votes cast in all and that of said 41 votes cast at said election corporation received 24 votes, and no corporation received 17 votes; that a majority of said votes cast at said election were cast for 'corporation'; that in the order made by me, as Probate Judge filing the certificate of said inspectors, certifying as aforesaid the result of said election, C.T. Lambert, T.A. Williams and Ed Ashwander, said inspectors heretofore appointed to manage said election were appointed and ordered to proceed to make and take an enumeration of the inhabitants residing within the territory as specified and designated in the petition and plat thereto attached and a part thereof," etc.

"It is therefore ordered, adjudged and decreed that the inhabitants of the territory embraced within the boundaries designated or shown by said petition and plat thereto attached and a part thereof, and also set out and shown by an order made on the ______ day of July, 1921, be and the same hereby are incorporated as the town of New Hanceville, Ala., that said town of New Hanceville, Ala., be and the same hereby is incorporated as town and is vested with the rights and powers granted by law to the inhabitants of such corporations."

It is insisted that the plat recited to have accompanied the petition and conformed to the description employed of the territory to be embraced in the incorporation is not on this trial to be...