Gravlee v. Moore

de GRAFFENRIED, J. — The inhabitants of Horse Creek, in Walker county, Avere incorporated by the name and style of the “Town of Horse Creek,” by an act of the Legislature approved February 18, 1897, and since that time the said inhabitants have remained incorporated under the charter which, by said act, was granted by the Legislature to- said inhabitants. In this act there is a provision authorizing the name of the said [134] municipality, to be changed “at any time as provided by section 1516 of the Code of Alabama of 1896.” At that time the state of Alabama had no Code of 1896, but it did have a Code of 1886, and it is evident that 1896, appearing in the act, was intended for 1886. This clerical misprision in the act is therefore self-correcting. Section 1516 of the Code of 1886 is as follows: “Ten adult male inhabitants may, by petition in writing to the judge of probate, propose an alteration or change of the name, or of the boundaries of the town, stating the alteration or change proposed; and on the filing of such petition, the judge of probate must order an election to be held and conducted in all respect as the election for the original incorporation; and if at such election a majority vote for the proposed alteration or change, the fact must be certified to such judge by the inspectors, and on the filing of - such certificate he must make and enter an order allowing such alteration or change; but the boundaries of the town cannot be extended'until the consent in writing, signed by them, of at least two-thirds of the owners of the real estate situate within the extension has been filed in the office of the judge of probate.” On or about the 26th of July, 1906, 10 people describing themselves as inhabitants of the “Town of Horse Creek, Ala.,” filed a petition with the probate judge of Walker County, praying that “the name of said Town of Horse Creek” be changed from “the Town of Horse Creek” to “the Town of Dora.” On July 26, 1906, the said judge of probate made an order that an election should be held to determine whether or not the name of the said town should be changed as above stated, and ordered that said election should be held on August 25, 1906. The election was held pursuant to the said order, ón August 25, 1906, and all the votes cast at said elec [135] tion were for the proposed change of name. On the 3d day of September, 1906, the said judge of probate made an order “that the name of Horse Creek for said town be changed to that of Dora, and that said town to be known as Dora instead of Horse Creek, Walker county, Ala.” Since the making of the above order the municipality has been known as, and has been called, Dora. It has not, since that time, been known as or called Horse Creek. Since that time its inhabitants have thought that they were inhabitants of Dora, have had their mail addressed to them at Dora, have had their merchandise shipped to them at Dora, and have claimed that they lived in Dora. Since the making of the above order the name “Horse Creek” has disappeared from the nomenclature of the municipalities of the state and in its stead there has, at all times, appeared the name Dora. Of course, all this does not appear from the record in this case, but there, are many things of which this court takes judicial cognizance, and one of those things is. the name of each of the municipalities of the state. 2. Appellee is of the opinion — and the trial court was of the same opinion — that on account of certain alleged fatal defects which appear in the proceedings that, were had for the purpose of changing the name of the municipality, the order of the judge of probate, changing the name of the town from Horse Creek to Dora was void, and that the municipality is still legally the “Town of Horse Creek” and is not legally the “Town of Dora.” Says the appellee: “The method of changing the name of a municipal corporation was purely statutory, and it was therefore necessary that it be strictly complied with. This must affirmatively appear of record, or else the probate court would never have obtained [136] jurisdiction of the subject-matter” — and to sustain the quoted statement appellee cites Blount v. Johnson, 145 Ala. 553, 39 South. 910, and McKinney v. Bibb County, 168 Ala. 191, 52 South. 756. We have no quarrel with the doctrines announced in said cases of Blount v. Johnson and McKinney v. Bibb County. The doctrines an: nounced in those cases may indicate that the proceedings to change the name of the town to Dora, which were had before the judge of probate, were void, but, whether they were void or not, the municipality once known as “Horse Creek” has, smce those proceedings were had, used the name of Dora, and only the name of Dora. The municipality has never ceased to exist. It has simply changed — by an abortive proceeding, it may be, but, nevertheless, by a proceeding having the semblance of a legal proceedmg and acted upon as if legal —its name to Dora. On August 13, 1907, an act of the Legislature was approved (now section 1046 of the Code of 1907) which provides as follows: “All municipal organisations now existing in the state of Alabama, whether incorporated under the general laws of the state, or by special act of the legislative department of the state government, and now exercising corporate powers or functions, and all towns and cities that may hereafter be incorporated under the provisions of this chapter, shall be bodies politic and corporate, using a common seal, which may at any time be changed and having perpetual succession, under the name noto used or hereafter assumed,” etc. The municipality under consideration was in existence when the above act was approved. It was existing under a charter which was granted to the inhabitants of “Horse Creek,” but it was then using the name of “Dora.” This municipality, therefore, comes directly within the letter of the above act — now section 1046 [137] of tbe Code — and since tbe passage of that act its legal name bas certainly been Dora. Tbe Legislature certainly bad tbe power to say that a municipal corporation wbicb was using a particular name at tbe time of tbe passage of tbe act wbicb is-now section 1046 of tbe Code should be a body corporate under tbe name wbicb it was then using. — State ex rel., etc. v. Lane, 181 Ala. 646, 62 South. 31. Reversed and rendered; writ of prohibition denied. Dowdell, C. J., and Anderson and Mayfield, JJ., concur.