Gantt v. Court of Commissioners , 210 Ala. 125 ( 1923 )

The suit is by petition for the writ of common-law certiorari to review the record of a certain proceeding in the court of county commissioners of Covington county, under which an election was ordered to be held for Rawls' school district No. 5, to determine whether or not a special tax should be levied for public school purposes.

Under section 1, art. 12, September 26, 1919 (Gen. Acts 1919, pp. 567, 607):

"Upon request of the county board of education to the court of county commissioners or other governing body, said court shall order an election to be held at the time requested by the said board of education to determine whether or not a special tax shall be levied for public school purposes within any school district in the county under the control of such board; * * * provided that no election in any rural or city school district shall be held [for the purpose specified] unless thecounty * * * shall be levying and collecting special county taxes for school purposes of not less than thirty (30) cents on each one hundred ($100) dollars worth of taxable property in such county." (Italics supplied.)

Very clearly, the primary and essential condition upon which alone such an election is authorized to be ordered and held is the fact that the county is already levying and collecting such a tax. This fact is therefore the basis of the court's jurisdiction in the premises; and since as to this subject the court is one of limited statutory power, it is necessary that the records of the court should affirmatively show the existence and ascertainment of the fact by the court, in order to sustain the validity of the order and of the election held pursuant thereto. Commissioners' Court v. Hearne, 59 Ala. 371,375; Mayfield v. Court of County Commissioners, 148 Ala. 548,553, 41 So. 932; Ferguson v. Commissioners' Court, 187 Ala. 645,657, 65 So. 1028.

The petition filed by the county board of education does not allege this essential jurisdictional fact, and it does not appear from the order or other proceedings in the commissioners' court that the court ascertained its existence.

The recital in the order that "upon first ascertaining that said petition did in all respects comply with the laws contained in General Acts of the Legislature of Alabama of 1919, authorizing and petitioning for such special election, a motion was made and duly seconded that said petition be granted," is obviously insufficient for that purpose.

It follows that the order for the election was void for want of jurisdiction, and should have been quashed, as sought by the petition. Ferguson v. Commissioners' Court, supra.

The judgment of the circuit court will be reversed and the cause will be remanded for appropriate orders in conformity hereto.

Reversed and remanded.

ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.