Town of Tallassee v. State

• Decision Date: 09 June 1921
• Docket Number: 5 Div. 790
• Citation: 206 Ala. 169,89 So. 514
• Parties: TOWN OF TALLASSEE et al. v. STATE ex rel. BRUNSON et al.
• Court: Alabama Supreme Court

89 So. 514

206 Ala. 169

TOWN OF TALLASSEE et al. v. STATE ex rel. BRUNSON et al.

5 Div. 790

Supreme Court of Alabama

June 9, 1921

Appeal from Circuit Court, Elmore County; B.K. McMorris, Judge.

Action in the nature of quo warranto by the state of Alabama on the relation of T.W. Brunson and others, citizens, etc., against the Town of Tallassee and others, to annull the incorporation of the town and to oust its municipal government. From a decree granting the relief prayed, respondents appeal. Reversed and rendered.

Where a proceeding in the nature of quo warranto was begun in the name of the state on relation of individuals against a town to dissolve the corporate entity on certain grounds including that of the insufficiency of the description of the area involved, and respondents interposed demurrers which were sustained, and relators declined to amend, and final judgment was entered in favor of the respondents, the judgment was tantamount to one upon the merits on final submission, and was res adjudicata as to the sufficiency of such description in another action by different relators seeking the dissolution upon that ground.

The following portion of the statement of the case, in quotation is taken from brief of counsel for appellant, the correctness of which is not questioned by opposing counsel:

"This is an action in the nature of quo warranto by the state on the relation of T.W. Brunson against the town of Tallassee and the individuals acting as its mayor and aldermen for the purpose of dissolving it as a corporate entity.

"It is alleged in the petition that T.W. Brunson is a citizen of Elmore county, Ala., resides within the corporate limits of the town of Tallassee, and is over the age of 21 years; that D.H. Sayers, Jesse Gulledge, J.M. Herren, M.F. Bruce, G.W. Martin, and H.J. Sullivan have associated themselves together as mayor and councilmen of the town of Tallassee, and as such are levying and collecting taxes, passing ordinances and exercising all the rights, privileges, and franchises of a municipal corporation without having been duly incorporated; that the invalid and void proceedings of the purported corporation consisting in the fact that there was on the 9th day of December, 1907, filed in the office of the judge of probate of Elmore county, Ala., a petition, signed by 25 persons, purporting to fix the boundaries of the limits of the proposed town of Tallassee, and petitioning to be incorporated under the name of town of Tallassee, but that the only description of the boundaries of the limits of the proposed town set out in said petition is in words and figures as follows: Block Nos. 32, 43, and 44, according to the survey of John M. Gray, 1853; that there is attached to said petition referred to no accurate map or plat showing the boundaries or limits of the proposed municipal corporation; that there does not appear anywhere of record that notice was given by publication or by posting as required by law to the effect that an election would be held to determine whether the inhabitants of the described community desired to become incorporated under the name of town of Tallassee; that a plat showing the limits of the proposed town was on file in the office of the judge of probate of Elmore county; that on January 14, 1908, the probate judge of Elmore county certified blocks 42, 43, and 44 according to the survey of John M. Gray of 1853, so incorporated under the name of the town of Tallassee, but that said certificate of incorporation is null and void, and that the alleged town of Tallassee is a nullity for the reasons set forth in the petition.

"Thereupon the defendants filed their plea and answer, setting up the facts as to the incorporation of the town of Tallassee and its history since the incorporation. Plea No. 8 alleges that immediately after the making of the order or decree of the probate judge of Elmore county, declaring the territory described in the petition for incorporating a municipality under the laws of the state of Alabama, the town of Tallassee, through its mayor and aldermen, selected under the law of the state, began to exercise all the privileges and franchises of a municipal corporation, and on the 19th day of March, 1908, the state of Alabama, on the relation of one J.H. Cole, and said J.H. Cole, filed in the circuit court of Elmore county, Ala., against the town of Tallassee and its then acting mayor and aldermen an information in the nature of an application for a writ of quo warranto, seeking to oust its said mayor and aldermen from the exercise of the privileges and franchises of a town or municipality, alleging that the order of incorporation was void and invalid for the same reason, or substantially the same reason, as is alleged in the information in this cause for the invalidity of the same, and, said information being submitted to said court on demurrers of the defendants thereto, it was ordered and adjudged by said court by a judgment thereon duly made on the 6th day of April, 1908, and duly entered on the minutes of said court, that the causes alleged therein for the invalidity of said proceedings of incorporating said town were wholly insufficient, and, the plaintiffs declining to plead further, said information was dismissed."

The judgment in the former litigation above referred to in the name of the State of Alabama ex rel. J.H. Cole and J.H. Cole v. Town of Tallassee et al., is as follows:

"Comes the parties by their attorneys, and the relator by leave of the court amends its second ground of objection to said petition filed in the probate court so that said ground shall read as follows:

"Second. For that an accurate plat of the territory proposed to be embraced within said corporate limits is not alleged in said petition to be attached to and made a part of said petition.

"And the respondents renew to said information as amended, the motion to strike and the demurrers to the same heretofore filed.

"Upon consideration, it is ordered and adjudged by the court that said motion to strike be, and the same is hereby, overruled.

"It is further considered by the court, and it is the judgment of the court, that the demurrer to said information and the several grounds thereof be, and the same are hereby, sustained, and, the relator declining to amend said information, it is considered by the court and it is the judgment of the court that judgment final be entered in favor of the respondent to said information on said demurrers.

"It is therefore ordered and adjudged by the court that the respondents go hence and recover of the relator and the sureties on his bond for the costs in this behalf expended, for which let execution issue. And the said relator and the state of Alabama on the relation of said relator jointly and severally except to said ruling and judgment of the court sustaining said demurrers."

In paragraph 7 the defendant set up that after the incorporation, in 1908, the town immediately, through its officers, duly elected, began to exercise the privileges and franchises of a town until the 1st of January, 1909, when it became dormant, and remained so until the 1st of January, 1910, at which time it was duly revived, and through its officers duly elected again began to exercise the privileges and franchises of a municipality, and has continuously since that time exercised the same, and has continuously since said time levied and collected taxes, adopted ordinances, and other matters which are set forth by way of reasons why the court should not exercise its discretion in granting the relief prayed.

In support of the defenses interposed the records of the proceedings of incorporation were introduced in evidence, and also, the record of the proceedings in the cause of State of Alabama ex rel. J.H. Cole and J.H. Cole v. Town of Tallassee et al., showing the information by the plaintiff in the cause for a writ of quo warranto, and attacking the proceedings of the incorporation of the town of Tallassee for the same reasons assigned in the present case, and a judgment in said case, hereinabove set out. It was further shown by the proof that the parties defendant in the cause of State ex rel. Cole v. Town of Tallassee was the town of Tallassee and its then acting mayor and aldermen, and also showed the activities of the town since the time of incorporation.

Upon the final hearing of the cause the court entered a judgment granting the relief prayed, to the effect that the town of Tallassee has no existence as a municipal corporation, and ousting the same from the exercise of such rights and powers, and also a judgment of ouster against the mayor and aldermen, respondents to the cause. From this judgment the appeal is prosecuted.

P.B. McKenzie, of Tallassee, George F. Smoot, of Wetumpka, and J. Lee Holloway, of Montgomery, for appellants.

Holley & Milner, of Wetumpka, for appellees.

GARDNER J.

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