59 So. 483 | Ala. | 1912
This is common-law certiorari, to quash or annul the proceedings had in the commissioners’ court of Walker county, by which a stock law district for beat 4 of that county was established. The law and equity court of Walker county awarded its fiat or allocatur to the commissioners’ court, on the petition of the appellants. The commissioners, in response to the writ, answered by certifying a transcript of the proceedings establishing the stock law district. On the hearing after the proceedings were so certified, the law and equity court declined to quash the proceedings in the commissioners’ court, and dismissed the petition of appellants. From that order the petitioners prosecute this appeal.
The first seven assignments of error go to the refusal of the loAver court to strike certain parts, and the whole, of the return made by the commissioners’ court to the writ. The appellants can take nothing by these assignments. While the court, we suppose, might strike parts or the whole of a return, if the matter certified is improper, surplusage, and wholly irrelevant and insufficient, yet it is not error for the court to decline to so strike. The result is that if the proceedings, or the transcript thereof, is insufficient to show jurisdiction on the part of the commissioners’ court to establish the
The return should consist of a full and complete transcript of the record or proceedings sought to be re viewed if the writ so orders, for the reason that the trial is on the answer and return, and is limited to an inspection of the record as returned and not upon an issue .of fact -as to what the parties claim by parol the record will or should show. While the order is, often, to send up the record, a certified and authenticated transcript thereof is usually what is sent up. But sometimes, and in some cases there is a peremptory command to send up the record itself. This, however, is unusual. The transcript so certified and sent up is treated as the record. The return should, of course, be responsive to the writ and should fully answer the allegations in the petition for the writ. It should not contain papers or proceedings which do not or cannot constitute a part of the record which is to be reviewed; and, if the return contains such matters, the court will disregard it or treat it as surplusage; or it may strike out such matter. But it is said by the textwriters on the subject that this latter mode is rarely resorted to, and that the better practice is to simply disregard such matters, for the reason that there is danger of striking out parts of the return that were properly contained therein, and no possible harm can result from surplusage which is disregarded. — 4 Ency. Pl. & Pr p. 219.
The record as returned by the inferior court or tribunal imports absolute verity and is taken as conclusive, and, for the purpose of contradicting the return, matters not contained therein will not be considered.
If the return shows that the inferior tribunal has ju-' risdiction, this is conclusive, and assignments for want of jurisdiction are not allowed.
If the jurisdictional facts do not appear from the record, they cannot be supplied by mere gratuitous assertions in the return nor by parol. If, however, the return is merely informal or irregular, the better practice is not to dismiss the writ or petition, but to require an amendment of the return, or further return to be made. If the return is not specific or omits matters which ought to be returned, a further return to specify or complete the return should be ordered. But if the same result would necessarily follow with as without the further return, then of course it would be useless to order it.
A further return in proper cases may be made by the court ex mero motu or on motion of either party. Such matters are largely within the discretion of the court, as the issuance of the order originally is largely matter of discretion.
It is not a proper practice to demur to a i*eturn of the writ of certiorari. We have above pointed out the proper practice. It is expressly stated in the texts and decisions that an objection, that matters de hors the record are contained in the record, cannot be taken by demurrer.- — 4 Ency. Pl. & Pr. 219.
Section 3312 of the Code now reads as follows: “The commissioners’ court possesses original and un
The two petitions filed in this case, we hold conferred jurisdiction upon the commissioners’ court to act, and the record shows that they found the necessary facts to authorize the holding of the election; and' that however irregular the proceedings, they are not absolutely void, and the court properly declined to quash the same. While the petition does not in terms allege that a majority of the landowners' signed the petition, and does not in terms allege that the petitioners have deposited money sufficient to defray, the expenses of holding such election, it does show that the petition was signed by a great number of landowners; and the court found that they constituted a majority, as the statute requires, and that the petition had been filed as prescribed. Whether those signing constituted a majority of those qualified to sign such petition, and whether the amount of money deposited was sufficient, would also be matters prima facie for the court to decide; and the record recites that all of these requisites were complied with, and therefore the proceedings were not absolutely void and should not be quashed. — Martin v. Crook, 155 Ala. 199, 46 South. 482.
Affirmed.