Alabama Advisory Opinions July 15, 1999: AGO 1999-246 (July 15, 1999)

AGO 1999-246.

Dear Mr. Sanderson:

This opinion of the Attorney General is issued in response to your request on behalf of the City of Madison.

Does section 11-42-2, or any provision of the Code of Alabama, require that the individual petitions submitted to the City, pursuant to section 11-42-2(10), must be recorded in the Office of the Judge of Probate and, if so, is the City to which the petitions are made obligated by law to pay recording fees for those petitions?

Your request states that in 1998 a number of citizens residing just outside the corporate limits of the City of Madison petitioned the City, pursuant to section 11-42-2 of the Code of Alabama, to adopt a resolution that three separate areas around the City be brought within the limits of the City. In accordance with section 11-42-2, the City adopted resolutions relating to the three areas and sent certified copies of the resolutions to the probate judge requesting annexation elections for each of the areas. Section 11-42-2 provides in pertinent part:

Whenever the council shall pass a resolution to the effect that the public health or public good requires that certain territory (described in the resolution) shall be brought within the limits of the city or town:

(1) It shall be the duty of the mayor to certify a copy of such resolution to the judge of probate of the county in which the land proposed to be annexed is situated, and said certified resolution shall have attached thereto a plat or map of said territory, which certified resolution and plat or map shall be filed by the judge of probate .

* * *

(10) Proof of residence and qualification as electors of petitioners and of persons affected shall be made to the judge of probate by affidavit or otherwise, as he may direct.

This section clearly requires that the resolution of the city and the map of the area to be annexed must be filed by the probate judge. The petitions filed with the City of Madison are not required by this section, or any other provision of the Code of Alabama, to be filed or recorded by the probate judge. The probate judge may require that the petitioners submit proof of residence and qualification as an elector. The proof submitted is not required to be recorded by the probate judge. You request notes that, in this case, each petition submitted to the City was submitted as an affidavit providing information concerning residency and qualifications as an elector. The probate judge used this information to establish proof of residency and qualification as electors.

Petitions filed with the City of Madison, although used as proof of residency and qualification as an elector, are not required by section 11-42-2 of the Code of Alabama, or any other provision of the Code, to be recorded by the probate judge.

I hope this opinion answers your question. If this Office can be of further assistance, please contact Brenda F. Smith of my staff.

Sincerely,

BILL PRYOR

Attorney General

By: CAROL JEAN SMITH

Chief, Opinions Division

BP/BFS

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