The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1908-12-30
LANE KNOCKS OUT
THE GREATER CITY
AvondaIe and East Birmingham
Are Part of City
NEW RULING ON ISSUES
Court Holds King Bill Void and the
Election Held Under 1t in jan
uary Is Nullity-Full
Text of opinion.
NEW RULING ON ISSUES

In the case of the state of Alabama
Kinley VS.. II. L. Martini" In the nature
of quo warranto to GUST the respondent
from office of alderman of the city OF
Birmingham, Judge A. o. Lane made the
following entry on the docket in the cir
cult court yesterday:
1T is ordered and adjudged that tho
application be and the same is. hereby
denied and dismissed out of this court at
the cost of the relator, +. w. Mckinley,
for which let execution issue against him.
the said e. w. Mckinley, and his sureties
for costs, ]. B. Gibson and ]. S. Ken
nedy"
Judge Lanes decision means, in effect.
that he holds the King Greater Birming-
ham bill an unconstitutional act by rea-
son of Irregularities of the senate journal.
Under his ruling in the case Avondale, or
the Tenth ward, which DR.. Martin repre-
sents in the City Council of Birming-
ham, remains a part of Birmingham and
Alderman Martin retains his seat on the
Board of Aldermen of Birmingham In
other words Judge Lane holds that the
King bill is not constitutional and that
the Greater Birmingham election held
hereunder was nulllty and did not pre-
clude the election held by the citizens OF
Avondale within less than six months
after the election held under this act"
The gist of the decision Is this: That
Avondale was Incorporated with Birming
ham under the municipal code inasmuch
as the Greater Birmingham election did
not preclude the special election held by
the citizens of Avondale. Therefore DR..
Martin retains his seat on the Board of
Aldermen.
Opinion in Full.
Judge Lanes opinion in the case follows
in full:
State of Alabama, ex rel. r. w. Mckin-
ley and E. w. Mckinley VS.. H. L.
Martin. In the Circuit Court of jefferson
County.
This is an action in the nature of quo
warranto to GUST the respondent from the
office of alderman of the city of Birming-
ham alleged to be usurped by him. By
consent of parties the case is tried by
the court without a jury. The cause was
heard on December "a, 1908, and then ar
gued orally by counsel for relator and re-
spondent. respectively, and the same was
held up to enable counsel to present print
ed briefs.
The petition sets forth that on August
s, 1907, an act was passed by the legisla-
ture of Alabama entitled IAN Act to alter
or rearrange the boundary lines of the
city of Birmingham" mow commonly
called the King bilD, under and by virtue
of which an election was held January 8,
1908, by the legal voters of all the ter
ritory set out in the act, which resulted.s
by large majority, in favor of Greater
Birmingham, and so enlarging the pres
ent limits of said city as to embrace Avon
dale and other contiguous territory; that
within less than six months after said
election Avondae held an election under
the municipal code for consolidation vel
non with Birmingham, which last cleo
ton was carried in favor of consolidation
and that such action was taken by the
boards of Birmingham and Avondale re-
spectively, as resulted in the consolida-
ton of Avondale and Birmingham, and
that respondent was then elected an all
derman of the city of Birmingham to rep
resent Avondale, then designated as Ward
10 of Birmingham; that respondent quail
flied as such alderman and that he is
usurpng said office, the election held by
Avondale being alleged to be void, as held,
contrary to law within less than six
months from the date of the election held
under the King bill.
Respondent demurs to the petition upon
several grounds-among others that the
court will take judicial notice that the
King bill was not passed according to
the requirements of the state constitu-
ton and hence Is void. and that the cleo
ton held Hereunder was a nullity and
did not stand in the way of Avondale's
holding en- election in less than six months
thereafter to become consolidated with
Birmingham. Virtually the same matters
are set up in respondents answer, which,
by consent, is filed without waving the
demurrers, the whole case being submit
ted and argued together. For reasons
hereinbelow given I pass by the demur-
rers. and base my opinion and resultant
Judgment upon the petition and answer
and the proof.
Opinion.
Until the opinion in the Sigsbee case,
decided this month, I had supposed
that the courts would take judicial
notice of the legislative journals touch
ing such legislation as that embraced
in the King bill. as was expressly de-
cided in the case of Nj. A. OF We
tumpka VS.. Wetumpka Wharf COM
pany SO Alabama. Gil. but from the
opinion in the Sigsbee case in which
section of said act was held valid,
and from an examination of the senate
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