Stephens v. Court of County Com'rs of Cherokee County

• Decision Date: 17 April 1913
• Citation: 61 So. 917,180 Ala. 531
• Parties: STEPHENS et al. v. COURT OF COUNTY COM'RS OF CHEROKEE COUNTY.
• Court: Alabama Supreme Court

61 So. 917

180 Ala. 531

STEPHENS et al. v. COURT OF COUNTY COM'RS OF CHEROKEE COUNTY.

Supreme Court of Alabama

April 17, 1913

Appeal from Circuit Court, Cherokee County; W.W. Haralson, Judge.

Certiorari by L.B. Stephens and others against the Court of County Commissioners of Cherokee County to quash and annul an order creating the stock law district. From an order denying their petition, petitioners appeal. Affirmed.

The petition, as set out in Exhibit A, is as follows: "We the undersigned, citizens of beat 8, will ask the commissioners' court to grant a stock law election in said beat"--and is signed by a number of persons. The order of the commissioners' court is that certain persons, naming them, bona fide freeholders, residing in precinct 8 in this county, owning a freehold estate in said precinct, have filed the petition, etc., desiring an election to determine whether or not stock shall be prohibited from running at large in said precinct, which is outside of an incorporated city or town, and that said petitioners have deposited with the probate judge an amount of money sufficient to defray the expenses of holding such an election, and after inquiry, the court having ascertained and determined that said petition is signed by one-fourth of the bona fide holders residing in or owning freehold estates in said precinct, it is therefore ordered, etc. Then follows the result of the election.

Hugh Reed, of Centre, for appellants.

McConnell & Connor, of Centre, for appellee.

McCLELLAN J.

This is an appeal from the judgment of the circuit court, overruling and dismissing the petition for common-law writ of certiorari to quash an order of the commissioners' court of Cherokee county establishing a stock law district in precinct 8 of the county.

While the petition for the stock law election in question did not conform to the requirements of the law (Acts Sp.Sess. 1909 pp. 124, 125), yet the order of the commissioners' court predicated upon these petitions, affirmatively found and adjudged that every jurisdictional requirement of that law existed, and on that premise ordered the election. Accordingly, under the doctrine applied in Cook v Commissioners' Court of Walker County, 59 So. 483 485, the circuit court properly dismissed the petition for certiorari. This ruling was based upon the change wrought by the amendment of Code 1896, § 957, as it now appears as section 3312 of the Code of 1907. ...