Marshall County Gas District v. City of Albertville , 269 Ala. 455 ( 1959 )

MERRILL, Justice,

Appeal from a decree overruling demurrer to a bill of complaint, as amended.

The bill alleges that respondent-appellant Gas District is a public corporation, composed of the municipalities of Arab, Albert-ville and Guntersville, in Marshall County, operating pursuant to Act No. 762, General Acts 1951, p. 1319; that said Act required the certificate of incorporation to provide the location of the principal office of the district and its post office address, and that certificate of incorporation showed this to be Albertville, Alabama; that the principal office is not at Albertville, but at Guntersville; and that “In the case of City of Albertville etc. et al. v. Marshall County Gas District etc., et al., being Case No. 8557 in the Circuit Court of Marshall County, Alabama, in equity, a final decree was rendered restraining the respondents therein from changing the location of the principal office of the Marshall County Gas District except in the manner specifically provided by the said Act No. 762 of the 1951 Legislature of Alabama.”

The prayer of the bill asked that respondent be permanently enjoined from maintaining and operating the principal and post office address of the Marshall County Gas District at any place other than Albertville, Alabama, so long as the certificate of incorporation of said gas district provides that the principal office and post office address shall be at Albertville, Alabama.

The grounds of the demurrer were:

“1. There is no equity in the bill.

“2. The complaint fails to recite facts which would authorize this Honorable. Court to take action in the premises.

“3. The complaint fails to aver sufficient facts which show the Marshall County Gas District has named or denominated any City other than Albert-ville, Alabama, as the principal office of said district.

“4. The complaint fails to aver that the Marshall County Gas District has located the principal office of the District and its Post Office address at any place other than at Albertville, Alabama.

“5. The complaint fails to aver that the respondent has not provided the location of the principal office of the District and its Post Office address in the City of Albertville, Alabama.

“6. The gist of the complaint alleges the 'operation* of the office rather than the location thereof.”

The bill as amended presents a matter of equitable cognizance and is good as to the demurrer interposed, and the trial court correctly overruled it.

Affirmed.

LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur.