McGraw v. County Commissioners, 89 Ala. 407

89 Ala. 407 | Ala. | 1889

STONE, C. J.

We concur with Hon. S. H. Sprott in holding that petitioners — appellants—are not entitled to a writ of certiorari in this case. The act under which the proceedings were had, approved February 17, 1885 — Sess. Acts, 580 — is clearly constitutional. — Stanfil v. Court of County Revenue, 80 Ala. 287. And we think the court of County Commissioners of Greene, in ascertaining the sense or wish of the freeholders of the district in which it was proposed to prohibit stock from running at large, rightly refused to count or consider as freeholders those persons to whom an inconsiderable fraction of land had been conveyed, solely for the purpose of enabling them to vote, or express their desire in the matter of establishing' such district. The sense of the law is, that only resident freeholders in fact, not in name, shall have a voice in determining the issue, as is clearly manifest in every aspect of the statute, express or implied. In the sense in which the commissioners intended to be understood, there can be no substantial difference between freeholders and bona fide freeholders.

. In the petition which was filed in this case, to establish “a district wherein stock may not be allowed to run at large,” it is not averred that the proposed district is “not embraced in the territory composing the ‘no fence’ or ‘stock law’ district, as now established.” It is urged before us, that for this omission the petition is fatally defective, and fails to make a case of which the court of County Commissioners could take jurisdiction. "We need not decide, and do not intimate what would be our ruling, if this question had been raised before the commissioners, where the petition could, and doubtless would have been amended. "We say it would have been amended, because, looking at the statute “to prevent tbe running at large of stock in certain portions of Greene County,” approved February 4, 1885 — Sess. Acts, 300 — we discover that tbe district embraced in these proceedings is not within that part of Greene county to which that statute is applicable. When the petition in this case was filed, notice was properly given, and the freeholders opposed to the establishment of the proposed district made vigorous defense against its establishment. They voted all the strength they could muster, and attempted to increase their strength by unauthorized means. Yet they raised no objection to the sufficiency of the petition. Further, when they applied for certiorari in this case, the defect now insisted on was not made a ground for the relief prayed for. Nor does it appear ever to have been claimed or relied on, until the argument was filed in this court. If there ever was anything in the objection, the petitioners for certiorari have waived it.— Ratcliff v. Allgood, 72 Ala. 119, and authorities cited.

There is nothing in the other objections urged by appellants, and we approve Judge Sprott’s ruling’ in refusing the writ of certiorari.

Affirmed.