West End v. State, 138 Ala. 295

138 Ala. 295 | Ala. | 1902

SHARPE, J.

O’Leary being the relator in this case, his joinder with the State as a plaintiff was necessary (Code, § 3426) ; and the amendment of the information by -the insertion of his name therein as a plaintiff was authorized by the statutes authorizing amendments to pleadings generally. Though the information was at first defective for want of such joinder it was efficient to begin the suit when filed. Security for costs appears to have been then given, and the mere allowance of the amendment did not call for new security. No complaint other than the information was necessary. — Capital City Water Co. v. The State, 105 Ala. 406.

By statute quo toarranto is given as a remedy “when any association, or number of persons, acts within this State as a corporation, without being duly incorporated.” — Code, Chap. 94, § 3420, sub-div. 3. ■ This is broad enough to include and does include persons who act as intendant and aldermen of an unincorporated town. The corporate authority of a town incorporated under the general statutes is vested in the intendant and five aldermen (Code, § 2942), and the acts of those officers are acts of the corporation.

Proceedings to incorporate a town under the general statutes are begun by “a petition in writing signed by fifty or more qualified electors who reside within the boundaries of the proposed town, and who are also householders and freeholders therein, stating the name ■and boundaries of the town proposed to be incorporated.” — Act amending section 2937 of the Code, Acts 1900-1901, p. 965. The statute provides that upon the filing of such a petition, the probate judge must direct an election to be held to determine whether the toAvn shall be incorporated; and when the result is certified to him he must “make an order of record that the inhabitants of such town are incorporated,” etc. — Code, §§ 2938, 2941. Unless fifty signers of the petition have the requisite qualifications, the petition is ineffective to inaugurate the proceedings and forms no valid basis for any subsequent step. The Iuav provides no way for contesting the petition or Avhereby the probate judge can judicially ascertain the qualifications of the petitioners. His action upon the petition cannot, therefore, be regarded as other than ministerial, or as precluding inquiry into the validity of the petition in a proper and direct attack upon the proceedings. Analogous questions were passed on in Grider v. Talley, 77 Ala. 422, and Harlan v. State, 163 Ala. 150; 33 So. Rep. 858. Quo toarranlo has been recognized as a remedy appropriate to raise such inquiry.— State ex rel. Yard v. Ocean Beach, 48 N. J. Law, 375; State ex rel. Lee v. Jenkins, 25 Mo. App. 484; State v. Bradford Village, 32 Vt. 50; State v. Atlantic Highlands, 50 N. J. Law, 457. See also High on Ex. Rem. § 684. The information in quo warranto takes the place of a complaint; and the information in this case contains definite averments which if true show the petition for the incorporation of “West End” was not signed by the requisite number of qualified persons, and that in consequence the incorporation proceedings were invalid,. As amended it was not subject to the objections taken by demurrrer. There is no authority for joining all the inhabitants of the town as parties defendant. From what has been said it follows that the demurrers to the pleas of non-joinder and to the answers numbered, respectively, 5 and 6, were properly sustained. Answers numbered 1, 2 and 3 are each open to the objections taken by demurrer.

On the trial it was proved without dispute that shortly before the filling oE the petition with the probate judge there had been an attempt to incorporate and a failure to procure signatures of the requisite' number of freeholders. That one person being advised of that failure, made what purported to be a deed for a lot in West End to fourteen other persons who afterwards signed the petition taking from them a note representing the agreed price of the lot together with a mortgage on the lot purporting to • secure the note; and that five dollars and something else not stated has since been paid on the note. The evidence tends strongly to show the moving .purpose of this transaction was to qualify the apparent purchasers to sign the petition for incorporation, and that the purpose was understood by those purchasers. Concerning the delivery of the deed there was conflicting testimony, some of which, taken in connection with the circumstances in evidence, tends strongly to show there was no delivery, actual or constructive, to any of the named grantees before the suit was brought. Other evidence tends to show the deed when signed and acknowledged was handed to an attorney who prepared it, and who represented the grantor and the grantees also, and that he delivered it to some of the purported grantees, but as to when he did so the record is silent. There is no evidence to show, unless by certain inference, that any delivery of the deed meant to be effectual occurred prior to the filing of the petition. The judgment appealed from may have been predicated solely and properly on tiie conclusion that the deed was not delivered before such filing. - If such is the correct conclusion. those persons, never-having acquired title thereto, had not a freehold interest in the lot when they became petitioners, and it is not shown or contended that they had other freehold interests in West End. If they be excluded, the petition lacked fifty qualified signers, and was ineffective. The trial court having before it the witnesses, had better opportunity than is here furnished for determining their credibility, and that fact is entitled to some weight here. — Woodrow v. Hawving, 105 Ala. 240. We are unable to find that its judgment is erroneous, or that there was -error in overruling the motion for a new trial.

Judgment affirmed.