City of North Birmingham v. State ex rel. Sparks

ANDERSON, J. Section 5450 of the Code of 1907, as to quo warranto, has no application to municipal corporations, and this proceeding must have been attempted under section 5453, which provides for the action in the cases there enumerated. Subdivisions 2 and 3 can have no bearing on the present case, and the relator must be proceeding under subdivision 1 of section 5453. This subdivision provides that the action may be brought in the following cases: “(1) 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.-'1 The information and proof shows that the respondents are legal officers of North Birmingham, and it does not appear, by averment or proof, that they are exercising any franchise or powers not authorized by the charter. It does not appear that the things they are doing or attemtping to do are not authorized by the charter of North Birmingham. The only complaint against the respondents is that they are exceeding their jurisdiction by doing or. threatening to do charter or franchise acts beyond the legal limits of North Birmingham. ’ This would not be the unlawful holding or exercise of a public office, or the unlawful holding or exercise of a franchise. They are properly in office, and the franchise that they are using is not questioned, nor are the acts complained of unauthorized. They are merely charged with going beyond the limits of jurisdiction in the exercise of an office or franchise. Section 5453 was not intended to correct a mere abuse or excessive use of an office or franchise, [126] but to remove a usurper from an office, or to prevent the use of a franchise which did not exist. It may be that au abuse of power might forfeit the charter of a business corporation under section 5450; but, as we have observed, this section does not apply to municipal corporations. We are borne out in the correctness of this conclusion by section 5465, which fixes the character of judgment as to the unlawful use of a franchise and which requires an exclusion from the office or franchise. The manifest purpose of the present information is to test the validity of the annexation of certain territory to North Birmingham and to restrain the respondents from exercising acts over same — not to oust them from the exercise of a franchise. Indeed, the judgment rendered does not comply with the statute. It excludes the respondents from the franchise, but in effect merely restrains or enjoins them from doing certain things in this newly acquired territory. If the respondents are exceeding their jui’isdiction or authority, this may be checked by an appropriate proceeding, but not by a quo warranto to test their title to an office or right to a franchise. Here the franchise exists, and the respondents are only charged with an excessive use of same, and are sought to be enjoined from using same in a certain way, and not that they be ousted from said franchise. Quo Avarranto is the proper remedy to test the right to the exercise of particular franchises not embraced Avithin those granted by the charter, and to oust the corporation from the exercise of such franchise.—Uniontown v. Glass, 145 Ala. 473, 39 South. 814; 17 Am. & Eng. Encyc. of Pl. & Pr. 396; Spelling on Extraordinary Relief, 1801. The act complained of in the Glass Case, supra, was the exercise of a franchise not given by the charter, and not the excessive use of a chartered right. On the other hand, it seems Avell settled, by the [127] great weight of authority, that where city authorities assume to exercise mere corporate powers beyond the territorial boundaries of the corporation, the remedy is not quo warranto, but injunction. Spelling on Ex. Relief, § 1802; High. Ex. Remedies, § 618; Stultz v. State, 65 Ind. 502; People v. Whitcomb, 55 Ill. 172; Delphi v. Startzman, 104 Ind. 344, 3 N. E. 937. The Indiana statute on quo warranto, considered in the Stultz Case, supra, was identical to subdivision 1 of section 5453 of the Code of Alabama of 1907.—Leigh v. State ex rel., 69 Ala. 261. The circuit judge erred' in giving the relator relief, and the judgment must be reversed, and one is here rendered dismissing the information. Reversed and rendered. Dowdell, C. J., and Sayre and Evans, JJ., concur.