State ex rel. Johnson v. Mayor of Ensley

DOY DELL, J. The proceeding b; qi warranto, or-on information in the nature of quo wcurranto, is regulated and provided for, in this state by our statutes. [664] Chapter 94, page 966 of the Code of 1896, provides a system as to procedure and remedy, which supersedes and takes the place of the common law remedy. — State ex rel Attorney-General v. Elliot, 117 Ala. 172. The proceeding-in this case must, therefore, be considered as instituted under the statute. Municipal corporations are expressly excepted from the provisions of § 3417, Chap. 91 of the Code. The question then is, can the present proceeding be maintained under subdivision 1 of § 3420. Said section authorizes an action in the name of the state against any party offending in the cases mentioned in the three subdivisions thereunder. Subdivision 1 reads as follows: “When any person usurps, intrudes into-, or unlawfully holds or exercises any public office, civil or military, or any franchise within this state, or any office in a corporation created by the authority of this state.” It is to be observed, that by the language employed, that, it is the actual usurpation, intrusion into, or unlawful holding or exercise of any public office or any franchise within the state, etc., that the statute is leveled against, and not a mere claim of office or threatened usurpation, or- threatened exercise of a franchise unlawfully. Waiving consideration of the question as to-whether a municipal corporation as such, may be proceeded against under said section, we will consider the averments of the information as to their sufficiency under the statute. The incorporation of the city of Ensley, is admitted in the information filed by the relators; it is likewise shown by the averments thereof, that among the franchises or powers granted under the charter, is the power to levy taxes, and enact licenses or privilege tax. There is no pretense of any usurpation of or intrusion into office, or any unlawful holding of office, nor is it averred that there has been any unlawful exercise of any franchise. The most that can be said of the averments in the information, is, that an unlawful exercise is threatened of the franchise granted under the charter. And this charge is based upon the theory, that the amendatory act of the charter, of September 30th, 1903, extending the corporate limits of the municipality is unconstitutional and void. [665] The relators are residents of the territory claimed to be brought within the corporate limits of the municipality by said amendatory act. If it be conceded that the said act is void, this would not help the relator’s case, since the information only charges a threatened abuse of a franchise, or grant under the charter, that may never be ■attempted to be carried out. Our conclusion is, that the averments of the information are wholly insufficient under the statute to authorize filie writ of quo warranto, and the court committed no reversible error in dismissing the information. Affirmed. MoOlellan, O. .J., Haralson and Denson, J.J., concurring.