Commissioner's Court of Blount County v. Johnson , 145 Ala. 553 ( 1906 )

ANDERSON, J.

The petition in this case was evidently not filed under the local law for Blount county (Acts 1901, p. 1800), but was doubtless attempted under the provisions of section 2 of the general law (Acts 1903, p. 432). While under the local law the result of the election to be held throughout the county permits the result to apply as per the vote of the. beats, respectively, and one beat could get the stock law, though it may have failed in the entire county or in some other precinct, yet there is no provision authorizing a separate and distinct election for any one precinct, or any number of precincts short of the entire county. The general law cannot be “construed as repealing any local stock law. heretofore enacted” (section 1, p. 431) ; but, as section 2 thereof provides upon certain conditions for an election in any one precinct, it Avould seem that there is a field of operation for both. laAvs. An election can be had for the entire county under the local laAV and for a single precinct under the geenral laAV of 1903. In order, liOAvever, for the court .of county commissioners to order an election under section 2 of the general law, a petition must be filed .by “a majority of the bona fide freeholders in the precinct to be affected, Avho must own a freehold estate in such precinct, stating that they desire an election in such precinct to ascertain Avhether or not a majority of the qualified electors of said precinct desire or favor a law prohibiting the running at large of stock in said precinct,” etc. It will be observed that a precinct is the unit fixed, and that the commissioners’ court would be without jurisdiction to order an election in a part or subdivision of a precinct. — Caudle v. Commissioners’ Court, 144 Ala. 39 South. 307.

The petition in the case at bar does not ask for an election as to an entire precinct, but only certain described territory by metes and bounds and which may be far short of the entire precinct. The order of the court declaring the result describes the territory as that part of the precinct described in the petition. The commisisoners’ court, in the exercise of statutory powers, as were conferred by the act in question is a court of limited jurisdiction, and to uphold its proceedings under the statute its records must affirmatively show the existence of the facts upon which its authority rests.— Flowers v. Grant, 129 Ala. 275, 30 South. 94 ; Joiner v. Winston, 68 Ala. 130 ; Stanfill v. Court of County Revenue, 80 Ala. 287 ; Brooks v. Johns, 119 Ala. 412, 24 South. 345. No method having been provided by which the action of the commissioners’ court can be reviewed, certiorari is the proper remedy. — Stanfill v. Court of County Revenue, supra; Miller v. Jones, 80 Ala. 89. It matters not .that the statute gives the right to contest the election. If the proceedings calling the election are void, an interested party should be permitted to review and quash the same, and not confined to a contest of the election. Furthermore, as the election was void, there was nothing to contest.

The petition avers that the petitioners are resident electors and landowners in the precinct to be affected by the proceedings, which shows that they are sufficiently interested to entitle them to apply for the writ.

The judgment of the circuit court- is affirmed.

Tyson, Dowdell, and Simpson, JJ., concur.