West End v. State

• Decision Date: 10 July 1903
• Citation: 36 So. 423,138 Ala. 295
• Parties: WEST END ET AL. v. STATE EX REL. O'LEARY. [a1]
• Court: Alabama Supreme Court

36 So. 423

138 Ala. 295

WEST END ET AL. v. STATE EX REL. O'LEARY. ^[a1]

Supreme Court of Alabama

July 10, 1903

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

Quo warranto by the state, on the relation of John O'Leary against West End, an alleged municipal corporation, and others. From a judgment dissolving the alleged corporation and excluding the individual defendants from the offices which they pretended to fill, defendants appeal. Affirmed.

This was a quo warranto proceeding, instituted for the purpose of dissolving a municipal corporation known as "West End," which was located near the city of Montgomery. The petition, as originally filed, was in the name of the "State of Alabama, on the relation of John O'Leary," against West End, an alleged municipal corporation, W. A. Taylor, R. D. Lee, Jerry Bennett, John O'Gwynn, Presley Motes, and Ed Harper. It was averred in the petition that John O'Leary, the relator, had given security for the costs of the proceedings; that the individuals named as defendants had associated themselves "as intendant and aldermen of the alleged municipal corporation by the name of West End," and were passing ordinances and levying taxes as such intendant and aldermen without being duly incorporated; that defendants purported to be an incorporated town by the name of West End, under the general laws of the state, having filed in the office of the judge of probate of Montgomery county a petition for incorporation, and having held an election of voters of said town for the purpose of determining whether or not they should be incorporated; that in pursuance of the purpose of incorporation there was filed in the office of the judge of probate of Montgomery county on January 1, 1903, a petition signed by 87 persons, stating the boundaries and limits of the proposed town, and praying that they be incorporated under the name of West End; that said petition was not signed by as many as 50 qualified electors who resided in the boundaries of said town, and who were householders and freeholders therein, as required by the statutes governing such matters, but that only 39 of the persons who signed said petition were qualified electors, householders, and freeholders; that the said petition was fraudulent and void and that the certificate of incorporation issued by the judge of probate was therefore invalid, and not binding, and of no effect. The prayer of the petition was that an alternative writ be issued, directing the defendants to show cause why they should not be excluded from the offices and franchises which they were usurping, and why judgment should not be rendered that the pretended municipal corporation of West End had no corporate rights, privileges, and franchises, and that the same be dissolved. At the time of the filing of the petition there was given security for costs, which was signed by three persons, but the relator was not one of the persons who signed said security. The defendants moved the court to dismiss the cause for the reason that the relator did not before or at the time of the petition give security for costs, as required by law. This motion was overruled, and the defendants duly excepted. The defendants then interposed two pleas of nonjoinder, in the first of which it was averred that the relator, John O'Leary, was not joined with the state of Alabama as plaintiff. In the second plea of nonjoinder the defendants set up that all the inhabitants of the town should be made parties defendant to the proceeding. The petition was amended by making the relator, John O'Leary, individually a party to the proceeding. The defendants demurred to the petition upon the grounds that said petition was unauthorized by law, and that the proceedings in quo warranto could not be maintained. This demurrer was overruled. The defendants then filed the following pleas: "(1) It denies each and every allegation contained in the petition, information, or complaint. (2) It pleads, in short, by consent, the general issue. (3) In answer to the petition, information, or complaint this defendant admits that the persons named therein are its intendant and aldermen, and are acting as such, but this defendant says further that this defendant was regularly and legally incorporated by the judge of probate of Montgomery county on the 6th day of January, 1903, and the order of said judge of probate is hereby referred to and made a part of this answer or plea. (4) In answer to the petition information, or complaint this defendant says that it admits that the petition referred to by the plaintiff was filed with the julge of probate of Montgomery county on the 1st day of January, 1903, and that said petition was signed by 87 persons. This defendant hereby refers to said petition, and makes it a part of this answer or plea. Defendant alleges that each one of said 87 persons represented in and by said petition that he was qualified to sign the same. And defendant further alleges that in truth and in fact as many as fifty of the signers of said petition were qualified under the law to sign the same; that when said petition was filed with the said judge he thereupon ordered an election to be held in said proposed town; his order is hereby referred to and made a part hereof; that in strict compliance with said order an election was held, at which election a majority of the votes cast were for incorporation; that the inspectors of said election certified the result thereof to said judge of probate, and he thereupon made an order of record incorporating said town of West End, which order is hereby referred to and made a part hereof. Defendant denies that said petition was fraudulent and void, and alleges that it was in every respect according to law, and that the charter issued to this defendant is regular and legal in every respect. (5) That when said petition was filed with the judge of probate he required that proof be made of the genuineness of the...