Town of Flat Creek v. Alabama By-Products Corporation

• Decision Date: 13 January 1944
• Docket Number: 6 Div. 158.
• Citation: 17 So.2d 771,245 Ala. 528
• Parties: TOWN OF FLAT CREEK v. ALABAMA BY-PRODUCTS CORPORATION et al.
• Court: Alabama Supreme Court

17 So.2d 771

245 Ala. 528

TOWN OF FLAT CREEK v. ALABAMA BY-PRODUCTS CORPORATION et al.

6 Div. 158.

Supreme Court of Alabama

January 13, 1944

Rehearing Denied May 18, 1944.

Appeal from Circuit Court, Jefferson County; C.B. Smith Judge.

The petition filed with the probate judge recites:

"We the undersigned taxpayers of the Town of Flat Creek, a town heretofore incorporated, but which has for many years permitted its organization to become dormant and inefficient do hereby petition Your Honor to have its corporate organization reinstated by an order entered of record; and we do further petition Your Honor to appoint a Mayor and Councilmen for such town to serve until the next regular election thereafter."

The names of forty-eight persons appear on the petition.

A letter accompanying the petition, addressed to the Judge of Probate and signed by Roy Johnson, Tax Assessor of Jefferson County, was as follows:

"The list attached hereto comprises approximately 85 per cent of the taxpayers, who live within the limits of the sketch also attached hereto."

The judge of probate thereupon made the following order:

"Dormant Municipality of Flat Creek Reinstated

"Whereas approximately fifty individuals have signed a petition for the Probate Judge to have the corporate organization of Flat Creek reinstated as authorized by Section 16, Title 37 of the 1940 Code of Alabama, to which petition is attached a statement by Roy Johnson, Tax Assessor of Jefferson County that it is signed by a majority of the tax payers of such town, and asking that a Mayor and Councilmen for such reinstated municipality be appointed to serve until the next regular election thereafter.

"Now therefore, by virtue of the authority given me under said Section 16 of Title 37 of the present Code of Alabama, I H.R. Howze, in my official capacity as Probate Judge, do hereby grant said petition and do hereby appoint H.G. Hubbert as Mayor and Claud Mears, P.G. Lawson, A.J. Florida, J.H. Quinn, and R.C. Stowe as Councilmen of such Town of Flat Creek, which officers shall hold their offices in accordance with the statutes in such cases made and provided.

"Done at my office in the Jefferson County Court House on this, the 21st day of December, 1942.

"H.R. Howze, Probate Judge."

Thereafter petitioners, Alabama By-Products Corporation and others, "residents and taxpayers of said Town of Flat Creek", filed a petition in the probate court, moving said court to vacate, set aside and hold for naught that decree theretofore rendered reinstating the corporate existence of the Town of Flat Creek upon the ground that the decree is void on its face for that the petition, the basis of said decree, was insufficient to invoke the jurisdiction of the court, in that said petition failed to allege that the signers thereof constituted a majority of the taxpayers of the town sought to be reinstated; and that the decree shows on its face that it was rendered without proof that said petition for reinstatement was by a majority of the taxpayers of said town.

Thereafter the judge of probate certified to the register in chancery his disqualification to act in the matter, and the register appointed Charles M. Hewitt to act as Special Judge of Probate. The matter being submitted on the motion to set aside said decree of reinstatement, the Special Judge of probate decreed that "the court is of the opinion that same presents a collateral attack upon the validity of said decree and proceedings and that petitioners are entitled to relief only in case that said decree is void for want of jurisdiction apparent upon the face of the record. Upon consideration of the record in said cause the court is of the opinion that the aforesaid decree reinstating the Town of Flat Creek, Alabama, is not void upon the face of the record, and that petitioners are not entitled to the relief prayed. It is therefore ordered, adjudged and decreed by the court that the relief prayed by petitioners be and the same is hereby denied."

Thereafter H.R. Howze as Probate Judge ex mero motu, amended nunc pro tunc his order and decree reinstating the dormant municipality. As thus amended the decree was made to read:

"Whereas approximately fifty individuals have signed a petition for the probate judge to have the corporate organization of Flat Creek reinstated as authorized by Section 16, Title 37, of the 1940 Code of Alabama, to which petition is attached a statement by Roy Johnson, Tax Assessor of Jefferson County that it is signed by approximately eight-five per cent of the tax payers who live within the limits of the sketch attached to said statement, and asking that a mayor and councilmen for such reinstated municipality be appointed to serve", etc.

H.M. Abercrombie and Edgar Allen, both of Birmingham, for appellant.

Chas. W. Greer, of Birmingham, for appellees.

THOMAS, Justice.

On this appeal the submission was on the merits and in the alternative for writ of mandamus to review the granting of certiorari by the judge of the circuit court, who reversed the order of the probate judge.

The pertinent parts of Judge Smith's order are to the effect that the decree made by Judge H.R. Howze as the Probate Judge of Jefferson County, as amended nunc pro tunc, purporting to reinstate the dormant municipality of Flat Creek, and the decree and order in reference thereto by Charles M. Hewitt as special probate judge, "are each separately and severally held void, etc., that each of said decrees separately and severally be and the same are hereby quashed and annulled." Such orders and decrees not within the statute, Code 1940, Tit. 7, §§ 775 and 776, are reviewed by certiorari, mandamus or writ of prohibition, as the case may be. State ex rel. Garrow et al. v. Grayson, 220 Ala 12, 16, 123 So. 573.

The contention of appellant, petitioner for mandamus, concisely states his insistence as to the jurisdiction of the probate court, as follows: "That the petition for writ of certiorari in the Circuit Court shows that the decree of Judge Howze reinstating the Town of Flat Creek was not void on its face, and that therefore the petition ought to have been stricken on motion to quash, or held insufficient on demurrer. That the decree of the Hon. Charles M. Hewitt, as Special Judge, overruling the motion to set aside the decree of Judge Howze, was a final decree, and his ruling could be attacked only by appeal, and not by a petition for writ of certiorari."

The action in the probate court was under Code 1940, Tit. 37, § 16, the pertinent part of which states that, "Towns or cities that have permitted their organization to become dormant and inefficient may, by a petition of a majority of the taxpayers of such town or city to the probate judge, have their corporate organization reinstated by an order of the probate judge, entered of record, * * *." (Italics supplied.)

The petition in question seeks to invoke or quicken into action the power of the probate judge to assume jurisdiction to the end provided by statute. Did the petition, construed as a whole, contain the jurisdictional facts? The judge of the circuit court who heard the petition for certiorari held that the petition to the probate judge did not contain the required averment of facts to give jurisdiction to the judge to reinstate the dormant municipality. The petition and exhibits thereto to the probate judge will be construed as a whole that the court may render judgment of the fact of jurisdiction invoked and assumed. State ex rel. Kinney v. Town of Steppville et al., 232 Ala. 407, 168 So. 433.

There are many decisions of this court which shed light upon the question of jurisdiction that need not be recited in detail. For example, in Savage v. Wolfe, 69 Ala. 569, Mr. Justice Stone, in speaking of the allegations necessary to confer jurisdiction upon a probate judge to proceed with a special statutory election, stated:

"The authority, however, for holding elections, such as we are considering, is purely statutory, and outside of the general jurisdiction of any court. To start such proceedings in motion, there must be presented to the judge of probate of the proper county the sworn petition of some resident freeholder of the limits, within which prohibition is sought to be established. The petition must contain every material averment specified in the first section of the act, including the averment that the petitioner is a freeholder residing within the proposed limits, and that in the opinion of the petitioner the public good will be promoted by a prohibition of the sale or giving away of vinous or spirituous liquors within such limits. Until such petition is filed, containing proper averments, the judge of probate is without jurisdiction to order an election."

It should be noted that under the rule stated, the petition, in order to invoke the jurisdiction of the probate court, must aver not only the facts which the statute specially says must be averred, but must also allege the other jurisdictional facts, which must exist, in order for the court to proceed.

Judge Stone also had occasion to pass upon the sufficiency of a petition to invoke the jurisdiction of the court to order an election on the prohibition question in the case of Tally v. Grider, 66 Ala. 119. That case involved the construction of a local option law approved March 19, 1875. The first section of that statute specified who might present such petition and set out certain averments which the petition must contain. In passing upon the sufficiency of a petition under that statute, this court stated:

"This entire proceeding is statutory, creating an entirely new jurisdiction unknown to the common law, and conferring authority on a...