HOMAN v. BEARD

8 Div. 838.

104 So.2d 914 (1958)

J. F. HOMAN et al. v. C. L. BEARD et al.

Supreme Court of Alabama.


Attorney(s) appearing for the Case

Bradshaw, Barnett & Haltom, Florence, for appellants.

Clopper Almon, Sheffield, and Arthur L. Shaw, Tuscumbia, for appellees.


STAKELY, Justice.

This suit seeking a declaratory judgment was filed in the Circuit Court of Colbert County, in Equity, by the members of the Board of Commissioners of the Town of Muscle Shoals against the members of the Board of Commissioners of the City of Sheffield, the members of the Board of Commissioners of the City of Tuscumbia, and the individuals composing the Board of Commissioners of Sheffield and Tuscumbia. The bill was amended so as to eliminate the individuals as parties. The situation presented by the bill is as follows:

Sheffield, Tuscumbia and the Town of Muscle Shoals are contiguous. Certain citizens of the Town of Muscle Shoals wished their town to be annexed to Sheffield. Certain other citizens of the Town of Muscle Shoals desired the town to be annexed to Tuscumbia. These two factions presented petitions to the Board of Commissioners of Muscle Shoals, one faction seeking an election to determine whether or not Muscle Shoals should be annexed to Sheffield and the other seeking an election to determine whether Muscle Shoals should be annexed to Tuscumbia. The governing bodies of both Sheffield and Tuscumbia expressed their willingness to have Muscle Shoals annexed to their respective cities. No action was taken on these petitions.

The prayer of the bill is for a declaration as to whether the petition to annex to the City of Tuscumbia has preference over the petition to annex to the City of Sheffield, and for a declaration as to the status under the situation and the circumstances involving the complainants as such commissioners.

The allegations of the bill further show the following: A group of citizens alleging themselves to be qualified electors of the Town of Muscle Shoals and favoring annexation to Sheffield, filed suit by mandamus in the Circuit Court of Colbert County against the Board of Commissioners of Muscle Shoals to have the court order the election held as to annexation to Sheffield. The court granted the mandamus and ordered the election to be called by the Board of Commissioners.

In Homan v. State ex rel. Smith, 265 Ala. 17, 89 So.2d 184, this court upheld the order of the Circuit Court of Colbert County, granting the mandamus. In accordance with the order of the court, we judicially know that an election has been held and the citizens of Muscle Shoals rejected annexation of Muscle Shoals to the City of Sheffield.

Since it has been decided that Muscle Shoals shall not be annexed to the City of Sheffield, there is now no justiciable controversy in the present case, because this court will not make a declaration in a declaratory judgment proceeding which will be futile. This court will not render a purely advisory opinion nor decide moot questions under the guise of a declaratory judgment. Birmingham Trust National Bank v. Garth, 263 Ala. 121, 81 So.2d 590.

The case now before us is moot and accordingly will be dismissed, each side to pay one-half of the costs.

Appeal dismissed.

LAWSON, SIMPSON, GOODWYN and MERRILL, JJ., concur.


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