State Ex Rel. Marsh v. Town of Boyles

SAYRE, J. The purpose of this proceeding is to dissolve a municipal corporation known as Boyles in the county of Jefferson. Relator has appealed from the judgment of the circuit court dismissing the petition and quashing* the writ by which he sought to accomplish the end desired. The proceeding for the incorporation of Boyles was essayed under article 2 of chapter 32 of the Code of 1907. Section 1053 of this article provides for the filing of a petition by the inhabitants of the “unincorporated territory,” and that— “Such petition shall state the proposed name of such municipality, and shall have attached thereto and as a part thereof an accurate plat of the territory proposed to be embraced within the corporate limits.” If the proceeding here in question rested, and could be permitted to rest, unaided upon the plat filed with the probate judge and the judicial knowledge wo have of attingent municipalities, we would not be willing to say that the incorporation of the territory, so shown should be declared a nullity by reason of inaccuracies or inefficiencies shown by the plat. But no doubt the statute contemplates a description by metes and bounds of the proposed territory in the poetition filed with the probate judge, and in this case there was an effort to file such petition — a petition of a sort was filed. Section 1055 of the article referred to provides for an election on the question “corporation” or “no corporation” by qualified electors residing within the boundaries of the proposed city or town, and section 1056 provides, in the event of a majority for corporation, for an enumeration of the inhabitants of the territory, after which the probate judge “shall make an order to be entered of record in the minutes of the court, that the inhabitants of such territory are incorporated as a town or city,” etc. In this case an election was held as for the territory described in the petition and an enumeration of the inhabitants “residing within said territory” was made, and thereupon the judge of probate made an order of record ifpon the minutes of the court, that is, it was “considered, ordered, adjudged, and decreed by the court that the inhabitants of said territory be and they'are hereby incorporated as a town and that the name thereof is Boyles, and that the boundaries of said town are as set out in the petition filed herein, viz.,” and here follows a description according to the petition. But this and all other descriptions of the territory to be incorporated shown by the record fail to describe the identical territory shown by the plat filed as required by section 1053 — indeed, the description of the southern boundary is impossible. One result — it is alleged, and not denied — is that the officers of the alleged town of Boyles have been exercising authority over 160 acres of territory, which are shown by the pdat but cannot by any interpretation be brought within the description employed in the various-steps of the proceeding, and in the judgment of the court of probate, which latter describes-the territory by metes and bounds and not otherwise. Moreover, we repeat, the description is impossible. The question as to how such deficiency as-we have under consideration should affect an attempted incorporation was expressly pretermitted in State ex rel. Allen v. Town of Phil Campbell, 177 Ala. 204, 58 South. 905,. nor was this question raised in Foshee v. Kay, 197 Ala. 157, 72 South. 391, cases cited, in the briefs. On the facts disclosed by the record before us, the trial court erred in dismissing appellant’s petition. Pie should have quashed the incorporation proceedings. Such will be the judgment of this court. Reversed and rendered. ANDERSON, O. J., and GARDNEB and MILLER, JJ., concur.