Mayfield v. Court of County Com. Tuscaloosa County

41 So. 932 | Ala. | 1906

DENSON, J.

— This is a proceeding by common-law certiorari, commenced by the appellants, J. W. Mayfield and others, for the purpose of reviewing and having quashed an order made by the court of county commissioners of Tuscaloosa county establishing a stock law district in said county. On the first hearing in the Tuscaloosa county court, Hon. Henry B. Poster, judge presiding, it was adjudged on the 24th day of January, 1906, that the petitioners were not entitled to the relief prayed for, and the petition for certiorari was dismissed, at the costs of the petitioners. On the 6th day of February, 1906, was filed with the clerk of the Tuscaloosa county court a paper in these words and figures:

“J. W. Mayfield et al. v. Commissioners’ Court, et al. County Court. I hereby acknowledge myself security for costs in the appeal of the above-entitled cause to the Supreme Court. Feby. 2nd, 1906. C. N. Verner.

“Approved Feby. 6th, 1906. B. B. Cooper, Clerk.

“Filed in office 6th day of Feby., 1906. B. B. Cooper, Clerk.”

No other security for costs was given. Motion is made here by the appellees to dismiss the appeal on the several grounds set out in the motion.

The principal ground in the motion is that “appeals in proceedings of this character cannot be taken by having the security for costs approved by the clerk, but security for costs must be approved by the judge trying the. cause, and that within thirty days from the judgment.” This ground of the motion and-the argument in support of it are predicated on section 431 of the Code of 1896, which provides: “Appeals may be taken to the Supreme, Court from the judgment of judges of the circuit and city courts on applications for writs of certiorari, su-persedeas, quo warranto, mandamus and other remedial Avrits, upon plaintiff or defendant giving security for the costs of appeal, approved by the judge trying the same, within thirty days from the day of the judgment.” Section 2827 of the Code of 1896 provides: “From the final judgment of any circuit court or other court exercising the jurisdiction of such court, in any such proceeding (mandamus, prohibition, certiorari and other remedial writs of a supervisory nature), an appeal shall lie to the Supreme Court as in other cases; but such appeal must he taken within thirty days after the final judgment is rendered.” In the case of Ex parte Campbell, 130 Ala. 171, 30 South. 385, it is held that an appeal will lie under section 431 of the Code of 1896 from an order of a judge either denying or granting a rule nisi in proceedings of the kind' we have in hand. This ruling gives a field of operation for both statutes set out above. When the appeal is from the judgment of the judge awarding or denying the rule nisi, the appeal must be taken under section 431, and in that event the security for cost must be approved by the judge. But when the- appeal is from the final judgment of the court, as is the case here, the. appeal must be governed by section 2827 and the security for costs must be approved by the clerk of the court.

But it is insisted by appellees that the paper purporting to be security for costs is insufficient, because the names of the appellants do not appear on it and it does not purport to create any liability on them. No supersedeas was asked for, and, when security for costs merely is given, it is only necessary that the surety should acknowledge himself as such for the costs of the appeal in the particular case.—Spencer v. Thompson, 24 Ala. 512; Crump v. Wallace, 27 Ala. 277; Satterwhite’s Case, 28 Ala. 65; Marshall v. Croom, 50 Ala. 479. It follows that the motion to dismiss the appeal is not well made, and it is overruled.

The Legislature in 1895 passed an act authorizing the commissioners’ court of Tuscaloosa county to establish districts in which stock may be prevented from running at large.—Acts 1894-95, p. 749, Section 2 of the act provides that: “Whenever any ten freeholders petition said court in.writing stating that they desire an order to be made establishing a district wherein stock may not be allowed to run at large, fully describing such district, that said petition must be filed with the probate judge of said county at least thirty days before the next term of the commissioners’ court and said probate judge must cause a notice of said application to be posted at the office of said judge, and copies of said notice to be posted in three public places in the dictrict described in the application or petition, and if a newspaper is published in said county, at least one notice of the said publication shall be given in such paper of the day of hearing such application.” It is conceded by the appellants that the petition filed with the probate judge in this instance to establish the stock law district in beat 20 conformed to the requirements of the act in its allegations.

But it is insisted that the order made by the commissioners’ court is void on its face. If this insistence is well made, then certiorari is the proper remedy, no other remedy being provided for, and the order should be annulled. —Stanfill v. Court of County Revenue of Dallas County; 80 Ala. 287. Section 3 of the act provides : “That said court of county commissioners, at the next regular term thereof after said application is filed, must, if such petition or application is filed thirty days before the term commences, and such notices are posted as above provided, hear the petitioners and any person that may be opposed thereto, and if such court is satisfied that a majority of the land owners or freeholders who reside in and who own land situated in said proposed district, and who are over the age of twenty-one years, are in favor of said district being .established, then said commissioners’ court must make an order granting said petition or application, and shall describe in said order, on the minutes of said court, the bound ary lines of said district so established, said order to go into effect thirty days after it is made.”

• It cannot be disputed that the commissioners’ court, in the exercise of the power conferred on it by the act, must be esteemed a court of limited jurisdiction, and to uphold its proceedings under, the act its records must affirmatively show the existence of the facts upon which its jurisdiction or authority to act rests.—Flowers v. Grant, 120 Ala. 275, 30 South. 94; Stanfill v. Commissioners, 80 Ala. 287. In this respect the jurisdiction conferred by the act is akin to the power conferred on the commissioners’ court to establish roads. In those cases in which the power of that court to establish roads has been invoked, it is held that the court is one of limited jurisdiction, and its proceedings, to be valid, “must show upon their face affirmatively, that the court has acquired jurisdiction of the subject-matter by taking those preliminary steps directed by the statute, in cases providing for its action.?’— Molett v. Keenan, 22 Ala. 484; Commissioners v. Hearne, 59 Ala. 371; Keenan v. Commissioners, 26 Ala. 568. In Commissioners’ Court of Lowndes Co. v. Bowie, 34 Ala. 461, a road case, the minute entry affirmed that it appeared by proof made that thirty days’ notice of the application had been given, by the advertisement posted up at the courthouse door and at three other public places in Lowndes county, according to law. It ivas objected to the record that it did not show at what places the notice was posted, by whom it was signed, or what it contained, or how long it remained posted up. The court said: “The contents of the notice sufficiently appear in the assertion that notice of the application was given. There was no necessity for designation of the public places at which the notices were posted up. It is enough that they were posted up at public places.”

It is next insisted that the record fails to show that the notice was posted at the number of places .prescribed. The point of attack in this respect is that the order shows that the notice was posted at “the public places,” not “three public places.” In' view of the fact that “three” is the number of places provided by the law, and the record does recite “that notices had been duly given of the filing and day set for hearing said petition by posting notices at office of the probate judge, the public places in said beat, * * * all for thirty days prior to this date as required by law,” we think we violate no rule of construction in holding that the appearance of the word “the,” instead of “three,” in the order, is a self-correcting clerical misprision, and does not affect the validity of the order.

There is no merit in the contention that the order fails to mark the boundary lines of the district established by the court wherein stock may not be permitted to run at large. The district established is described as all the territory embraced within the boundaries of beat No. 20, Tuscaloosa county, known as “Crossland’s Beat.” This, we think, substantially complies with the requirements of the statute.

The act of the Legislature involved in this case, being a local act, is no-t affected by the act approved September 29, 1903, which authorizes the court of county commissioners in the several counties of the state to cause elections to be held in such counties, or parts thereof, for the establishment of separate stock law districts.-Gen. Acts 1903, p. 431; Maxwell v. State, 89 Ala. 150, 7 South. 824; State ex rel. Tyson v. Houghton, 142 Ala. 90, 38 South. 761.

There is no merit in any of the other points made by the appellants against the order of the commissioners’ court.

There is no error in the record, and the judgment of the trial court is affirmed.

Weakley, C. J., and Haralson and Dowdell, JJ., concur.