City of Talladega v. Jackson- Tinney Lumber Co. , 209 Ala. 106 ( 1923 )

Section 1070 of the Code authorizes municipalities to extend their corporate limits, and section 1071 prescribes the procedure for the execution of that design. The first step is the passage of —

"a resolution to the effect that the public health or public good requires that the territory, describing it, shall be brought within the limits of the city or town."

The city council of Talladega passed such a resolution, but it is urged that it was ineffective, because it was not published in any newspaper, as required by section 1258 of the Code, in the case of "ordinances or regulations of a general or permanent nature," with the further provision that they "shall take effect from and after their publication." Very clearly, however, the resolution here in question is not an ordinance or regulation of a general or permanent character, intended to be governed by section 1258. It is a resolution merely, designed to set in motion the election machinery provided for the purpose, and, when that purpose is accomplished it is functus officio, in the strictest sense of the term. See Hooper v. Albertville, 205 Ala. 621, 88 So. 868, for an analogous instance of exclusion from the operation of section 1258.

It appears from the bill that the order made by the probate judge under subdivision (2) of section 1071, directed an advertisement of the proposed election in a particular paper, Our Mountain Home, but that (presumptively) it was advertised in another paper instead. This variance was immaterial. The requirement of the statute was met by advertisement in any newspaper published in Talladega, and such an advertisement is not denied by the bill. The case of Deal v. Houston County,201 Ala. 431, 78 So. 809, cited as to the contrary, is not in point, since it holds merely that the authority of the probate judge to charge the county for the cost of a newspaper publication of a poll list was exhausted by one publication. Obviously, the name of the newspaper in which this election notice was to be published was of no importance to the voters who were concerned with the election, and there was no reason whatever to prevent the probate judge from using another newspaper than the one designated in his order — a change which may have been advantageous, or even necessary.

Another contention of the bill is adversely disposed by the case of State ex rel. Sigsbee v. Birmingham, 167 Ala. 651,52 So. 461, as follows:

"The requirements of section 1072, Code 1907, that the council should declare in each resolution and the judge in each order 'that such resolution, order or notice, as the case may be, is passed, given or entered under the provisions of this article,' are directory only and proceedings for the extension of the city limit are not invalidated for a failure of the order declaring the result of the election to contain such quoted provision."

Subdivision (2) of section 1071 of the Code provides:

"Within ten days from the date of the filing of such resolution, the judge of probate must make and enter an order upon the minutes of said court, directing and ordering an election to be held by the qualified electors residing within the territory described, not less than twenty days nor more than forty days from the date of the making of the order. The said judge shall give notice of the holding of such election by publication in a newspaper published within the city or town whose limits are proposed to be extended if a newspaper is published therein."

Subdivision (7) provides:

"The inspectors at the respective voting places must, as soon as the polls are closed, ascertain and certify the results of the election, at their respective voting places, to the judge of probate, and deliver the same to the returning officer, who must at once return the same to the judge of probate, and the judge of probate must canvass the return as made by the inspectors, and if it appears that a majority of the votes cast at the election were 'For Annexation,' the judge shall make and enter an order on the records of the probate court adjudging and decreeing the corporate limits of the city or town to be extended so as to embrace the territory described in the resolution and designated on the plat or map attached to the resolution, and must cause the certified resolution and the map and all orders or decrees or judgments to be recorded in the records in his office, and from the time of the entry of such order such territory shall be a part of and within the corporate limits of the city or town."

The duties enjoined upon the probate judge by subdivisions (2) and (7) are manifestly ministerial and not judicial, as expressly decided of like duties under other statutes. Green v. Adams, 119 Ala. 472, 24 So. 41; Leigh v. State ex rel.,69 Ala. 261. This is true, notwithstanding the language of subdivision (7) that upon a canvass of the returns, the result so appearing, the probate judge shall make and enter an order on the records of the probate court "adjudging and decreeing the corporate limits of the city or town to be extended," etc. It is of no consequence that such an order is referred to as a judgment or decree, for the order is in fact nothing but an authoritative announcement by a statutory agent of the result of the election, and involves no element of that judicial discretion and determination which are essential to the character of a judgment.

This view of the nature of the orders made by the probate judge in this proceeding renders inapplicable those rules of law which relate to the validity and effectiveness of judgments, and we need not consider that phase of the argument presented in the briefs. The question is therefore upon the validity and effect of ministerial orders which were duly made by the probate judge, and duly filed in the probate court, but which were not entered on the minutes of the court until the lapse of ten years after their filing.

Subdivision (2) of section 1071 provides that the probate judge must "make and enter an order upon the minutes of said court," directing and ordering the election. The minutes of a court are the written memoranda of its acts and proceedings. They are not properly final records, and subdivision (2) of section 5421 of the Code requires the probate judge "to keep minutes of all his official acts and proceedings; and, within three months thereafter, to record the same in well-bound books." We think that when the election order was made in writing by Judge Camp, and "filed" in the court, it was thereby to all intents and purposes entered on the minutes of the court, ready to be recorded in the minute books. The order was effective when it was filed, and the failure to record it within three months could not, by relation back, or otherwise, invalidate the election held thereunder. L. N. R. Co. v. Perkins, 152 Ala. 133, 44 So. 602. We know of no rule of law or policy which would forbid the recordation of the papers filed in court in this proceeding, at any time thereafter; nor is there any sound reason why any succeeding probate judge should not cause such papers to be recorded.

Subdivision (7) of section 1072, with respect to the final order of the probate judge declaring the result of the election, requires that that order be entered "on the records of the probate court"; and further provides that "from the time of the entry of such order" the territorial extension declared shall become effective. Under this provision it would seem that the mere making and filing of the written order was not sufficient to make it effective, but that result was postponed until the order was inscribed upon the permanent records of the court in the usual way. However, we need not decide that question, since the instant suit involves the assertion of municipal prerogatives over the added territory only since the due recordation of the final order and other documents on file.

The recordation in question need not be rested upon the authority given to probate judges, under subdivision (7) of section 5430 of the Code, "to complete the minute entries and decrees of the court when the same are incomplete on account of the failure to make the necessary entries at the time when they should have been made." Such a recordation of documents on file, which the law requires or authorizes to be recorded, is a general duty which may be performed at any time; and if the documents purport to have been signed and filed by the proper officials, and are found in the custody, and among the records, of the probate court, they are to be regarded, prima facie, as genuine, and the burden is upon him who denies their genuineness to plead and prove that contention.

The case of Hudson v. Hudson, 20 Ala. 364, 56 Am. Dec. 200, is not opposed to this view, since it was dealing with a document which purported to be a judgment or decree of the probate court, which had never been recorded or entered upon the minutes of the court, and which it was proposed to use as a basis for the rendition of a decree nunc pro tunc. Under the conditions stated, it was held merely that the paper was not self-proving as a record of the court, and hence did not of itself authorize a decree nunc pro tunc.

There is no merit in the contention that Talladega's change from the old aldermanic to the commission form of government in 1920, before the recordation of the documents relating to this territorial extension, prevented and nullified the extension. That theory is based upon a provision of the act which authorizes such a change in the form of government, viz. "the territorial limits of such city shall remain the same as under its former organization." Acts 1911, p. 595, § 6. This means simply that the territorial limits of the city shall not be affected by the change in the form of government, and could not have been intended to deny or affect the right of extension, when asserted and accomplished under sections 1070 and 1071 of the Code.

The contention that the resolution of the city council and the election proceedings that resulted were prompted by the mayor for the sole purpose of inflating the apparent population of the city, and were not undertaken in good faith, and were fictitious and simulated, and are for those reasons invalid, is not entitled to serious consideration. If such a proceeding is properly initiated, and conducted in accordance with the statutes, and results in an election adopting the extension, the private intention of participating officials, or of the voters themselves, can have no influence upon the validity and effectiveness of the proceeding.

We hold that, upon the showing of the bill of complaint, the election was valid, and that the territory in question was legally brought within the corporate limits of the city of Talladega. The result is that the bill is without equity, and the demurrer thereto should have been sustained.

The decree of the circuit court overruling the demurrer will be reversed, and a decree will be here rendered sustaining the demurrer, and the cause remanded for further proceedings.

Reversed, rendered, and remanded.

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