Brazeel v. Commissioner's Court of Blount County , 155 Ala. 196 ( 1907 )

ANDERSON, J.

Gen. Acts 1903, p. 432, § 2, in prescribing the qualification of signers to a petition for an election under said act, does not require that the petitioners he resident freeholders of the precinct. They must he bona fide freeholders owning a freehold estate situated in the precinct, but need not reside therein; and the petition and order comply with the statute as to' jurisdictional questions. It is true that, under section 5, none hut qualified electors can vote, and, if not residents of the precinct, they would not he qualified and could not vote at the election, though owning land in the precinct. The purpose of the. law seems to be’to give bona fide freeholders, ex vi termini, those owning land, in good faith, situated within the precinct, whether residents thereof or not, the right to apply for relief thereunder, hut to make the relief sought dependent upon the will of a majority of the electors voting at said election.

It is insisted that the order is void for failing to show that those in favor of and those opposed were represented on the board of managers, as provided by section 3 of’ the act. This is merely directory, and the failure of the. order to recite this fact was not the omission of a jurisdictional averment. The law contemplates a fair election, and suggests the propriety of allowing both sides to be represented; but conditions might be such that none opposed the relief sought, or, if thej^ did, they were not known when the managers were selected. It would be an anomaly to hold that the property owners could not get relief because there was no one opposed, and, therefore, no legal election could be held. Moreover, there is nothing in the record to indicate that any one opposed the petition before and up to the appointment of the managers. True, there were votes against; but the record discloses the development of no opposition up to the time the managers were selected.

The judgment of the circuit court is affirmed.

Txso;st, O. J., and Haralson, Simpson, Denson, and McClellan, JJ., concur in the result. Tyson, O. J., and McClellan, J., concur in the construction given the statute in the opinion, but do not think that common-law certiorari is appropriate to review the action of the commissioners’ court, upon the theory that their acts were ministerial, and not judicial.