49 So. 870 | Ala. | 1909
Appeal from an order of the circuit court of Colbert county quashing a writ of certiorari whereby it was sought to annul the creation by the commissioners’ court of a defined “stock district."’ The petition prayed an election for the purpose of taking the popular will whether “hogs, sheep, geese, and goats” should be permitted to run at large, in a described precinct, and to malee a three-wire fence a lawful fence. The order granting the petition and calling the election followed the petition, and directed that an election be held upon the question set forth in the petition. In determining the result of the election, the commissioners’ court found the majority vote to- have been in favor of “stock law,” and it was thereupon ordered that a “stock law is hereby declared” in a certain precinct.
It is, of course, evident that the petition was not void, notwithstanding it included elements not within Code 1907, § 5882. It contained all that was necessary to invoke the powers of the commissioners’ court- in the premises. It was faulty in the respect that a ballot was sought on the desire of those concerned for a prohibition that “geese,” not within the statute, should be forbidden to run at large, and that a certain kind of fence should constitute a lawful fence in the district described. Did the inclusion of the stated -elements render the election void ?
It is urged, and that upon the authority of Henry v. Board of Revenue, 151 Ala. 511, 44 South. 110, that the extraneous matters included in the question submitted to the ballot may be treated as surplusage. The Henry Case, did not present the inquiry here involved. There, the opinion shows, it was conceded that a “proper petition was filed * * * for one purpose, and one purpose only, viz., for stock law or no stock law. * * * The addenda made, by the commissioners’ court, to the order calling the election, and declared to be surplusage by this court, related to an agreement between that court and the petitioners with respect to the fencing of the district, or any part of it. It nowhere appears in
Reversed and rendered.