Watts v. Town of Green Valley

• Decision Date: 25 July 1968
• Docket Number: 6 Div. 577
• Parties: Don E. WATTS v. TOWN OF GREEN VALLEY et al.
• Court: Alabama Supreme Court

Page 398

213 So.2d 398

282 Ala. 555

Don E. WATTS v. TOWN OF GREEN VALLEY et al.

6 Div. 577.

Supreme Court of Alabama.

July 25, 1968.

Rehearing Denied Aug. 22, 1968.

Beavers, Shannon & Harrison, Birmingham, for appellant.

Irvine C. Porter, Birmingham, for appellees.

KOHN, Justice.

This is an appeal from three decrees of the probate court of Jefferson County, Alabama, all entered on April 15, 1968, in the court below. The first decree denied the relief prayed for in a petition or motion filed by appellant on September 7, 1967, to vacate and set aside a decree of the probate court of Jefferson County, dated June 29, 1967, directing the holding of an incorporation election on July 25, 1967, to determine whether the town of Green Valley should be incorporated, and to vacate and set aside said election. The second decree was a decree of incorporation issued by the probate court, after finding that all the statutory requirements for holding the election were in order, and finding that a majority of all of the votes cast on July 25, 1967, had been cast for incorporation, and after a further finding that a census showing 1591 inhabitants had been duly filed. The third decree ordered an election, as required by statute, to be held on June 25, 1968, to elect a mayor and five councilmen for the town of Green Valley. Appellant filed notice of appeal and security for costs on April 22, 1968, which was duly approved by the probate court, and citations duly served on opposing counsel. Hence this appeal.

On June 29, 1967, a petition was filed to incorporate a municipality known as Green Valley, Alabama. This petition was filed in the probate court of Jefferson County, pursuant to Title 37, § 10, Code of Alabama, 1940, as amended, and before such section was amended by Act No. 780, Acts of Alabama, 1967, Vol. II, p. 1640, approved September 9, 1967. The petition contained an affidavit which stated:

'* * * the persons whose signatures appear on the foregoing petition reside at the addresses shown opposite their names thereon, that more than twenty-five of said persons are qualified electors residing within the limits of the proposed municipality, That at least four qualified electors so signing said petition reside in each quarter of each quarter section, or part thereof, within the boundary of the proposed municipality, and that said petition is signed by the persons or on behalf of the firms or corporations owning at least sixty percent of the acreage of such lands.' (Emphasis supplied.)

On the same date, the probate judge of Jefferson County ordered an election to be held on July 25, 1967, to determine the desires of the residents of the proposed municipality with regard to the matter of incorporation. A majority of the residents voted for incorporation in this election.

On September 7, 1967, the appellant filed a sworn petition moving the probate court to vacate and set aside the order of election previously entered and the election held thereunder. On September 15, 1967, and on October 5, 1967, the appellant filed sworn amendments to his petition or motion.

On March 12, 1968, Neal Newell, one of the persons who signed the petition for incorporation, filed a motion in the probate court of Jefferson County requesting it to enter an order of incorporation. This motion was continued until April 5, 1968, when testimony was taken on the motion. The evidence presented primarily was the testimony of Watts, and the stipulated written testimony of the witness Gwin.

The unrefuted testimony disclosed conclusively that one of the four people living in the northeast quarter of the northeast quarter of section 11, township 19, range 3 west, one of the quarter sections involved in the incorporation of Green Valley who signed the petition, was not a qualified elector of Jefferson County, Alabama, as required by Title 37, § 10 of the Code of Alabama, 1940, as amended; Recompiled Code 1958, as amended, which reads as follows:

'10. Communities of seventy-five may incorporate; exception in county of six hundred thousand.--When the inhabitants of an unincorporated community, which has a population of not less than seventy-five, constituting a body of citizens whose residences are contiguous to and all of which form a homogeneous settlement or community, desire to become organized as a municipal corporation, they may apply to the probate judge of the county in which such territory is situated, or the greater portion thereof, if it is situated in two or more counties, for an order of incorporation, 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 state the proposed name of such municipality, and shall have attached thereto and as a part thereof an accurate plat of the territory proposed to be embraced within the corporate limits, including all subdivisions into lots, blocks, streets and alleys, within such territory, if any, and an accurate description by metes and bounds of the boundary of such territory. No platted or unplatted territory shall be included within such boundary unless there are at least four qualified electors residing on each quarter of each quarter section, according to government survey or part thereof, of such platted or unplatted land, who assent thereto in writing by signing said petition, together with the consent of the persons, firms or corporations owning at least sixty percent of the acreage of such platted or unplatted lands, such consent to be signified by their signing said petition. Proof of residence and qualifications as electors of petitioners and of persons affected shall be made to the judge of probate, by affidavit or otherwise, as he may direct. When determining the ownership of such lands the person, firm or corporation assessing the same for taxation shall be accepted by the probate judge as prima facie the owner thereof.

'However, an unincorporated community lying within or partly within the boundaries of a county having a population of 600,000 or more, according to the most recent federal decennial census, shall not be incorporated under this section if (1) the territory proposed to be incorporated has a total population of less than 1,000 or (2) if the territory or any part of its perimeter lies within three miles of the corporate limits of any existing city or town.'

The last paragraph of the above-quoted statute, became a part of Title 37, § 10, supra, by amendment on September 9, 1967, subsequent to the date the petition was filed in the probate court, which said petition was filed on June 29, 1967, seeking the incorporation of the town of Green Valley.

The appellant contends there are two grounds for reversal on this appeal. The first contention of appellant is that the probate court lacked jurisdiction in rendering the decrees relating to the incorporation of the town of Green Valley, in that one of the persons who signed the petition was not a qualified elector, as required by statute. The second contention is that the incorporation of the town was prohibited by statute, namely, Title 37, § 10, Code of Alabama 1940, as amended, supra.

The issue presented by this second contention is based upon the fact that the proposed corporation is within three miles of the City of Hoover, Alabama, and not allowed because the incorporating statute (Title 37, § 10, Code of Alabama 1940, as amended, supra) prohibits such proposed incorporation as it is 'within three miles of the corporate limits of any existing city or town.' However, we do not think it necessary on this appeal to decide whether the above statute, as amended, prohibited the incorporation of this proposed municipality, for we hold that the probate court lacked jurisdiction to render the decrees appealed from.

The precise question narrows down to the real issue on the motion or petition before the probate court, involving whether or not one of the four alleged qualified electors signing said petition who, it was alleged, resided in a 'quarter or a quarter section, or part thereof,' within the boundary of the proposed municipality actually was a qualified elector at such time as he signed the petition.

The petition of incorporation filed in the probate court on June 29, 1967, recites everything necessary to invoke prima facie jurisdiction of the court. The probate court, as far as the proceeding before it in this case is concerned, being a court of limited and special jurisdictionIt must appear from the face of the petition before such court that its action is within the scope of such special or limited jurisdiction, and nothing is presumed. Walton v. Walton 256 Ala. 236, 54 So.2d 498. Likewise, by analogy, is the conclusion of the court in Alabama Public Service Commission v. McGill, 260 Ala. 361, 71 So.2d 12.

Here, there was a Direct attack on the validity of the decrees, which direct attack questioned the jurisdiction of the court to render such decrees, and moved the court that they be vacated. Such direct attack was filed in the court that rendered the decrees. The alleged facts recited in the decree, or decrees, as to the jurisdiction of the court, was contradicted by primary records in the proceeding, and disclosed the lack of jurisdiction on the part of the court, in that one necessary party to the petition was not a qualified elector as required by the statute, Title 37, § 10, Code of Alabama 1940, as amended, supra; Ex parte Griffith, 209 Ala. 158, 95 So. 551. And, without the contested party being a qualified elector, the court was without jurisdiction.

The allegations and recitals of jurisdiction in the decree of a court of special or inferior jurisdiction, only show a prima facie jurisdiction when offered in evidence in a Collateral proceeding, where, in this case, the attack on the decree was a Direct attack, and the record in the court itself, that is, the motion to vacate before the court, disclosed...