
    Village of Gandsi v. Town of Seminary.
    [48 South. 908.]
    Municipalities. Extension of boundaries. Code 1906, § 3301, amended laws 1908, eh. 186, p. 196.. Code 1906, § 3312, amended laws 1908, eh. 187, p. 196.
    Under Code 1906, § 3301, amended laws 1908, eh. 186, p. 196, providing for the extension of municipal boundaries, one municipality cannot extend its boundaries so as to include another, nor is the power given by Code 1906,. § 3312, amended laws 1908, ch. 187, p. 196, wherein the legislature seems to have intended hut failed to grant the power.
    From the circuit court of Covington county.
    Hon. Robert L. Bullard, Judge.
    Proceedings were begun, under the statutes, Code 1906, §§ 3301, 3312, as amended Laws 1908, chs. 186, 187, p. 196,. by the town of Seminary to enlarge its boundaries so as to embrace the village of Gandsi, the northern boundary of the one-municipality being the southern boundary of the other. The-village and some of its freeholders appealed from the ordinance-of the town to the circuit court. An issute of law was there presented as to whether the town could extend its limits so as to-embrace the incorporated village. From a judgment of the-circuit court in favor of the town the village appealed'to the supreme court.
    Code 1906, § 3312, as amended Laws 1908, ch. 187, p. 196,. provides that “all municipalities that have been chartered by proclamation of the governor since January 1, 1891, whose nearest boundary line was within one mile of any corporate line-of an existing city or town of over five hundred inhabitants shalL be abolished when the said existing city or town shall' extend their limits to take in said territory, and when so taken in all legal debts and liabilities shall be assumed by the city or town and they shall be legally responsible for same as if they liad been contracted by the said city or town: Provided that any municipality affected by the foregoing provisions of this act shall have the privilege and right within sixty days from the passage and approval of this act of consolidating with its adjacent municipality as provided by sections 3301 and 3305. of chapter 99 of the Code of 1906.”
    
      Napier Bilbo and Demurs & Shands, for appellant.
    The ordinance of the town of Seminary looking to the extension of its boundaries, under the facts of this case, is absolutely void. .
    The town could, under Oode 1906, § 3301, and the act amending the section, Laws 1908, ch. 186, p. 196, extend its municipal limits only to include unincorporated territory, and the act of 1908, ch. 187, p. 196, does not enlarge its powers.
    
      W. L. Cranford and McIntosh Bros., for appellee.
    The ordinance of the town of Seminary extending its boundaries was authorized by Oode 1906, § 3301, amended Laws 1908, ch- 186, p. 196, and Code 1906, § 3312, amended Laws 1908, ch. 187, p. 196. The latter act, Laws 1908, ch. 187, p. 196, extended the power of the town so as to enable it to. include corporated as well as unincorporated territory, else the act is meaningless. Of course any coustruction of a statute, which renders it an abortion is not the true construction.
   Whitfield, C. J.,

delivered the opinion of the court.

The Legislature undoubtedly intended, by § 3321 of the Oode of 1906, as amended in 1908 (Laws 1908, p. 196, c. 187), to give to an existing municipality with five hundred inhabitants, whose boundary line was within one mile of another municipality, the right to absorb such other municipality; but it is just as manifest from an inspection of section 3312 that no grant of power to do that is anywhere contained in that section. There is nothing in the section but an incidental reference to such absorption. It merely provides a time when, if the absorption occurs, the other municipality absorbed shall stand abolished.

In other words, while such was the legislative purpose, as we know from the history of this section and the reasons behind its enactment, it is just as clear as can be that the Legislature did not effectuate that intention, but wholly failed to give such grant of power in said section 3312. Section 3301 of the Code, and the other cognate sections in said chapter 99 on municipalities, provide alone for power in a municipality to incorporate, by extension of its limits, adjacent unincorporated territory. Those sections nowhere look in any of their provisions to any grant of power to an ‘existing municipality to extend its territory over the territory of another municipality and thus absorb it. The thought in the legislative mind was, in the enactment of section 3312, that it was a great evil to have two municipalities, vested with full municipal powers, completely officered, etc.,, whose boundary lines were only one mile apart, and so they intended to abolish ‘ minor municipalities so circumstanced and permit existing municipalities with five hundred inhabitants in such circumstances to absorb such lesser municipalities, and thus get rid of this very undesirable condition. The purpose was manifestly a good one; but they wholly failed, as a simple inspection of section 3312 clearly demontrates, to provide any means whereby this could be done to grant any authority for such action. It is fortunate that it is less than a year to the next session of the Legislature, when the purpose of the Legislature can be properly effectuated by an act properly drawn.

The result is that the ordinance of Seminary is void, the absorption of Gandsi by Seminary is a nullity, and the judgment, is reversed and the suit dismissed.

Reversed and dismissed.  