136 Ga. 778 | Ga. | 1911
With respect to the incorporation of towns, the Political Code of 1895 provides: “Whenever the qualified voters 'of any town or village, not incorporated, consisting of not less than twenty-five qualified voters, wish to be incorporated, a petition shall be filed, by at least a majority of the male inhabitants of such town or village, in the superior court of the county in which the inhabitants reside, stating in such petition the proposed boundaries of such town, and the name to be
1. The municipality became, at least, a de facto corporation, the legal existence of which could not be collaterally .attacked. 1 Dillon on Mun. Corp. (5th ed.) §§ 66, 67, 2 Id.' § 644, 4 Id. §§ 1556, 1560; Constantineau on the De Pacto Doctrine, §§ 46-50, 58-68; 20 Am. & Eng. Enc.' Law, 1135 (7) ; 28 Cye. 172, et seq.; 3 Am. & Eng. Ann. Cases, note at p. 242; 11 Id. note at p. 1060; 27 L. R. A. (N. S.) note at p. 262.
(a) In a proceeding to enjoin the municipal authorities from the enforcement of an ordinance, the legal existence of the corporation could not be assailed on the ground that at the time the election was held, and at the time of the granting of the order of incorporation, there did not reside within the corporate limits 25 qualified voters; nor on the ground that the petition was not filed by a majority of the male inhabitants as required by the statute; nor on the ground that many of those voting at the election were not qualified Voters.
2. The petition for incorporation and the notices hereinbefore referred to described the territory to be incorporated as “including the territory within a radius of one mile from the Southern Railway depot at Constitution,” in DeKalb county, Georgia, a part of which territory was in DeKalb county and a part in Pulton county; The order for incorporation provided that “said incorporation shall extend one mile in every direction from the present location of the Southern Railway depot at Constitution.” Held, that the territory embraced within the corporate limits of the town was that which was included within a radius of one mile from the center of the location of the depot, and the order for incorporation was not void on the ground that the limits of the incorporation were indefinite. Cook v. Johnson, 47 Conn. 175 (36 Am. R. 64).
3. In view of the admissions in the answer of the plaintiff in error in regard to the passage of the ordinance attacked, proof of the existence of
4. Under the pleadings and evidence, the court did not err in granting an interlocutory injunction restraining the enforcement of the ordinance complained of, which was one restricting burials within the cor-’ porate limits to the two places prescribed therein, and making penal its violation.
Judgment affirmed.