State v. Town of Phil Campbell

• Decision Date: 16 May 1912
• Citation: 58 So. 905,177 Ala. 204
• Parties: STATE EX REL. ALLEN ET AL. v. TOWN OF PHIL CAMPBELL ET AL.
• Court: Alabama Supreme Court

58 So. 905

177 Ala. 204

STATE EX REL. ALLEN ET AL. v. TOWN OF PHIL CAMPBELL ET AL.

Supreme Court of Alabama

May 16, 1912

Appeal from Circuit Court, Franklin County; C. P. Almon, Judge.

Quo warranto by the State, on the relation of L. M. Allen and others, against the Town of Phil Campbell and others. Judgment for defendants, and plaintiff appeals. Reversed and rendered.

W. H Key, of Russellville, and A. H. Carmichael, of Tuscumbia, for appellant.

Williams & Jones, of Russellville, for appellees.

DOWDELL C.J.

This is a quo warranto proceeding instituted for the purpose of dissolving a municipal corporation known as Phil Campbell and from a judgment of the circuit court of Franklin county dismissing the petition and quashing the writ, the relator has appealed.

The petition for the writ rests upon two grounds: First, that the petition for the incorporation was not signed by 25 qualified electors residing within the limits of the proposed municipality; second, that the petition did not "have attached an accurate map or plat of the territory proposed to be embraced in the corporate limits, but that the same was and is inaccurate, incorrect, impossible, and void for uncertainty."

Section 1053 of the Code provides that: "When the inhabitants of an unincorporated community, which has a population of less than one hundred, desire to become incorporated as a municipal corporation, they may apply to the probate judge of the county, in which such territory is situated, * * * by a petition in writing signed by not less than twenty-five qualified electors residing within the limits of the proposed municipality. Such petition shall have attached thereto and as a part thereof an accurate plat of the territory proposed to be embraced within the corporate limits. Proof of the residence and qualification as voters of the petitioners shall be made to the judge of probate, by affidavit, or otherwise as he may direct."

Section 1054 of the Code provides that: "Upon due compliance with the provisions of the next preceding section (1053), the judge of probate must direct an election to be held," etc.

It was held, in West End v. State, 138 Ala. 295, 36 So. 423, under the then existing statute, that the action of the judge of probate on a petition for the incorporation of a town was ministerial, in so far as it related to the qualification of the signers of the petition, and of consequence; that such action would not preclude inquiry into the validity of the petition in a proper direct attack upon the proceedings for incorporation. As a premise for that ruling, however, it was stated by the court that the law as it then existed provided no way for contesting the petition, or whereby the probate judge could judicially ascertain the qualification of the petitioners. Acts of General Assembly, 1900-01, p. 965, amendatory of section 2937 of the Code of 1896. The clear implication from the decision is that, if a mode for contesting the petition or for a judicial ascertainment of the qualification of the petitioners had been provided by the statute, the proceedings for incorporation would be safe from attack by quo warranto, if the record showed the ascertainment by the court, or that contest was made.

On account of the difference in the two statutes, it is here insisted by the appellee that the West End Case, supra, is not authority for declaring void the proceedings to incorporate the town of Phil Campbell, but, inferentially at least, that it is authority for upholding them, so far as it relates to the qualification and residence of the petitioners.

The insistence seems to have support in the case of Dunbar v. Frazer, 78 Ala. 538. In that case the court construed an act regulating the granting of license to sell liquor in the city of Opelika. Said act is found in the Acts of 1885 (Acts 1884-85, p. 179), and was approved February 17, 1885. The act required applicants for licenses to give notice for at least 20 days previously, by publication in a newspaper, naming the time when and place where the application would be made; and "proof" that such publication was made, by satisfactory evidence. It was also provided that the application might be contested, by a denial under oath that the applicant was a person of good moral character, etc.; that witnesses might be examined as to that issue; and that the determination of the issue should be final.

In construing the statute, the court said: "Construing all the parts of the act together, we are firmly of the conviction that the act of granting license, under the provisions of this law, is the exercise of a function quasi judicial in its nature. * * * Where a power of this doubtful kind is conferred on a judicial officer, and the public interests will be best subserved by holding it to be of a judicial nature, the courts are always so inclined to hold." Ex parte Harris, 52 Ala. 87, 23 Am. Rep. 559. And the court held that the action of the judge refusing the license could not be controlled by mandamus. The following cases were cited: McDuffie v. Cook, 65 Ala. 430; Mobile Mut. Ins. Co. v. Cleveland, 76 Ala. 321; High on Extr. Rem. § 231; Ex parte Thompson, 52 Ala. 98. From the last-cited case the court quoted as follows: "I can conceive of no case in which an officer is compelled to hear evidence, and to exercise judgment on such evidence, that the power, the duty he exercises, is not, to say the least of it, in its nature judicial."

In California, under a statute relating to the creation of municipal corporations, which provides that the board of county supervisors shall, on the hearing of a petition for incorporation, determine how many inhabitants reside within the proposed boundaries and whether the petition is signed by a sufficient number of electors in the district, it was held that, in quo warranto proceedings by the state...