100 So. 866 | Ala. | 1924
The proceeding is quo warranto to test the validity of the incorporation of the town of Valley Head. The writ was denied, and the petition dismissed.
The real question propounded is: Does the record, as substituted, show an incorporation of said municipality? No attack is made on the sufficiency of the citizens' petition to incorporate, or the qualifications of the persons signing the same. The judge of probate ordered the election, and gave the required notice thereof. The election was held pursuant to such order and notice, and the returns thereof canvassed showed that a majority voting was in favor of incorporation. A census was taken, as required, and that showed more than one hundred population. Thereafter the probate judge made an order declaring the due incorporation of the municipality. This order was not, at the time of its issue, recorded on the minutes of the probate court of De Kalb county, but was later so recorded.
The town elected officers who served their terms. The mayor and aldermen against whom this proceeding is filed had been regularly elected at the time prescribed by law for holding municipal elections, and the town has been functioning as a regularly organized municipal corporation since said first election of officers. Some time after the organization of the municipality it was discovered that some of the papers had been lost or destroyed, and that the order declaring the town incorporated had not been recorded on the minutes of the probate court. The municipal authorities began proceedings before the probate judge to substitute the lost records, which was done in due course, and the order of incorporation was recorded on the minutes of the probate court of said county, all of which had been done at the time of the trial of this cause.
It is conceded by counsel for appellant that there is no statute in this state governing the substitution of lost papers in a matter of this kind, and that substitution could only be made by the court in the exercise of its inherent power to preserve its own records, and which power was recognized by the common law.
The quotation of counsel from 34 Cyc. 606, 608, referring to notice as a part of the procedure, is inapplicable in this case. The reference to notice to the opposite party evidently has reference to a cause of action between litigants who are opposite parties. The proceeding to establish a municipality is a statutory ex parte proceeding in which there is no adverse party, and there could be no service on a party that did not exist. The only information the probate judge could have is that at the time of the election a certain number of voters were in favor of incorporation, and a certain number were against it, but who they were he could not know under the rule of secrecy which attends an uncontested election.
It is suggested that notice of substitution might have been given by publication; but this form of service can only be effective when provided for by statute as in the Illinois case cited in appellant's brief. De Wolfe v. Boswell,
"As a precautionary measure, to prevent injustice from being done, we are prepared to say, that where the motion is made after judgment, notice should be given, yet it must be regarded as a mere question of practice, and we are inclined to think, if the court act without it, its judgment would not be reversible."
The inherent power of the court to substitute was the subject of discussion in the following cases; Oswitchee Co. v. Hope
Co.,
" 'The jurisdiction, being concurrent, will be maintained only: First, when a court of law cannot grant suitable relief; and, secondly, when the party has a conscientious title to relief. Both grounds must concur in the given case; for otherwise a court of equity * * * is bound to withhold its aid.' " Mr. Justice Blackstone said: " 'Many accidents are supplied in a court of law; as loss of deeds. * * * And many cannot be redressed even in a court of equity. * * *' 3 Black. Comm. 431; Story, Eq. Jur. (13th Ed.) p. 88, § 79; Id. (14th Ed.) §§ 119, 120."
If action without notice under the common law and its application in this jurisdiction was held (before the statute) as not "reversible" where there is an adverse party (Wilkerson v. Branham, supra) who could be served with notice, certainly it would not be reversible error where there is no known person who is adversely interested. A holding requiring notice to those who participated in such election should be given would deprive a court of all power to substitute such lost records. Moreover, it will be noted that no attack is made as to the correctness of the substituted records, and no suggestion is made of any abuse of the power of the probate court in substituting these records.
Some emphasis is made in appellant's brief about the order declaring the town of Valley Head incorporated not being immediately recorded on the minutes. Without any dispute the order was reduced to writing and in due form, though not recorded, and at the time of the trial of this cause the same was recorded on the minutes of that court. The language of the statute defining the duty of the probate judge in that behalf is: "* * * shall make an order to be entered of record in the minutes of the court." Code, § 1056. State ex rel. Marsh v. Town of Boyles,
If the order is made in writing and in due course is recorded on the minutes, every purpose of the law is met. Here the record of the order, which was duly made, in proper form, was delayed because of the loss of the papers, but all had been restored to the record by the court in the exercise of its inherent power, and the order recorded as required by the statute, at the time of the trial of this cause.
The only attack made on the record of the incorporation proceedings is directed to the plat which was attached to the petition — that there is nothing about the plat to show the extent of the territory and to designate its boundaries, etc. This contention is not supported by the plat certified to this court for inspection. The course and distance of every line is accurately stated. A government land corner is located in the territory, and the distance of this corner from the boundary line is stated in feet along the land line. The testimony is without dispute that any surveyor could start at this land corner inside the territory, follow the land line the distance named to its intersection with the boundary line shown on the plat, and locate every line and corner shown on the plat. The plat also shows the location of the Alabama Great Southern Railroad, its depot, certain roads and well-known objects, so that there could not be mistake as to the location and boundaries of the territory of the municipality of Valley Head. Thus it is distinguished from the plat held insufficient in State ex rel. Marsh v Town of Boyles,
This court takes judicial knowledge of the town or village of Valley Head on the Alabama Great Southern Railroad before and after the petition and map were filed with the purpose of incorporation. Kay Son v. Alabama Cotton Grain Co.,
The town of Valley Head exercised its corporate franchise, as we have indicated, and was brought within the rule announced in State ex rel. Roberson v. Town of Pell City,
The substituted record, map, and proceedings before the probate judge, and minutes of that court pertaining to the incorporation of the town of Valley Head, were properly admitted in evidence.
The judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.