The Birmingham age-herald., 1908-12-19

Montgomery, December 1S.-(Special.) J.
 In view of the wide interest in the de-
 eision of the supreme court declaring
 that East Birmingham is not a part of the city of Birmingham and holding valid the Greater Birmingham election of Janu- ary 6, 1908. the opinion in full is given as follows:
 1 The state of Alabama, judicial depart ment, the supreme court of Alabama, Mo- vember term. 19OS-O9. Sixth Div. 665 The state of Alabama ex rel. J. N. Sigsbee ct al. vs. the city of Birmingham ct al. Ap- pealed from Jefferson circuit court. Simpson, J.-This is a quo warranto proceeding, instituted by the appellants, to test the validity of certain elections by which certain territory. described in the petition, was annexed, or intended to be annexed, to the city of Birmingham.
 On August s, 1907. the act of the legis- lature was approved, being An act to alter or rearrange the boundary lines of the city of Birmingham, Ala" Said act provided for altering and rearranging the boundary lines of said city by adding thereto the territory described in the pe- tition; but, by section thereof. pro- vided for an election to be held to de- termine whether said act should go into effect, and that if a majority of the quail fled voters participating in said election should vote in favor of Greater Bir- mingham, said act shall become in full force and effect on October l, 19O9;" but if a majority be against the proposition, then this act shall be null and void."- Local Acts, 1907, p. 902-
 Under and by virtue of said act an election was held on January 6, 1908, and the returns were duly made, though the record does not show what the result of said election was
 The City Council of said city then passed a resolution (purporting to be under section 1071. code of 19O) requesting the probate judge to call an election for the purpose of annexing a part of the same territory to the said city, and the election was accordingly held June 30, 1908 resulting in vote in favor of said annexation.
 Under the act of August S. 1907, as will be seen. If that election of January 6, 1908, resulted favorably, the act was not to go into effect until October 1, 1909, so that, whether that election was lost or carried, the result will be the same as to this case
 Demurrers were sustained and the cir cult court dismissed the petition for writ of quo warranto and the relators ap- pealed.
 The appellees insist that said action of the court was without error, because, first quo warranto Is not the proper pro- ceeding, as 1t appears that the exercise of the franchise was only threatened Jas was the case in the cause of state ex rel Johnson vs. mayor and city council of Ensley, 142 Ala. 665), but the petition, as amended. alleges that said city has an- nexed the territory described. has desig- mated it as Ward Eleven, "has sworn in councilmen from said ward ,and assumed to exercise sanitary and police authority over said territory and in every respect claims the said part of said territory part of the municipal city of the city of Birmingham. and is exercising municipal functions and privileges, through It's mayor, police officers, sanitary officers and others intrusted with such duties for said city"
 This shows actual exercise and not mere threat to exercise the franchise or governing said territory.
 Quo warranto is the proper remedy Tn this case Section 5453, code of 1907; city Of Uniontown vs. state ex rel. Glass, l45 Alabama, 491.
 It is next insisted that section Of the act of August 8, 1907, is void, as be- ing in contravention of paragraph 29 of section 1O4 of the constitution. Said sec- ton prohibits local legislation in regard to a number of subjects, said paragraph @ being as follows: Providing for the con- duct of elections or designating places of voting, or changing the boundaries of wards precincts or districts, except in the event of the organization of new coun- ties, the changing of the lines of old counties.'
 This paragraph evidently refers to mak- ing changes in regard to elections and changing the boundaries of wards al- ready in the municipality and does not touch the subject of changing the bound aries of the municipality itself by adding new territory to it. This is made Very clear by paragraph IS of the same sec ton, which, after prohibiting the amend ing, confirming or extending the char ter of any private or municipal corpora l tion, or remitting the forfeiture there of" adds these words; Provided, this shall not prohibit the legislature from altering or rearranging the boundaries of l the city, town or village" l Section of the act of August 8, 19o7 | is not violative of section 1O4 of the con- stitution and as said act provides for only one election and the election of January G. 1908, having been held there 1 under, and being valid, no other election | could be called hereunder
 | Article of chapter 32 of the code Of 1907 (paragraphs 1070-107D provides for the | extension of the limits of any town or 1 city and article of the same chapter 1 provides for extending the corporate linn its of "any city having 25.OO0 inhabitants or more,' in which clas the city of Bir- mingham is paragraphs 1O75-1125, code of 190O.
 Section 1073 (being in said third article) provides that "after an election has been he'd in any territory, under the provisions of this article, or any other law, no other or subsequent election shall be ordered or held for the same territory or any rart thereof within six months next after said election"
 Section 1125 (being in article 4) provides that after an election has been held in RANn CONCEDT