In resting the opinion almost entirely upon the case of Mayor, etc., of Ensley v. Cohn, 149 Ala. 316, 42 So. 827, and many cases approving same, we overlooked the more recent case of First National Bank of Eutaw v. Smith, 217 Ala. 482,117 So. 38, wherein said Ensley Case was criticized. We think the criticism as to the misapplication of the law in that case went to the broad statement that, when the notice gave the details of the proposed act and not the mere general substance of same, the Legislature had the right to make any changes as to the details, whether important or material or not, in the passage of the act so long as they related to the general purpose or substance of the published notice. This was perhaps a proper statement when only the general substance was set out in the notice, but said statement was too broad when the notice set out the proposed bill in haec verba or gave the details of same. The true rule seems to have been properly stated in the case of State ex rel. Wilkinson v. Allen, 219 Ala. 590,123 So. 36, wherein a distinction is made when the notice merely gives the general substance of the proposed bill from one which sets out the proposed bill, as was done in this case. See, also, Gray v. Johnson, Ala. Sup., 179 So. 221.1 In the former the Legislature could make any reasonable changes which related to the general purpose or substance of the notice. In the latter no material change could be made from the published notice, notwithstanding the change may be within the substance or purpose of the proposed enactment. This case of State ex rel. Wilkinson v. Allen, supra, does permit changes from the notice provided they are not material, such as was sanctioned in the case of Houston County v. Covington et al., 233 Ala. 606,172 So. 882, wherein there was no change as to the amount or purpose of the appropriation, the change merely authorizing the governing authorities of the municipality to apply its part of the funds to such roads, streets or bridges as they see fit. Therefore, the change was not material and which differentiated said case from the case of First National Bank of Eutaw v. Smith, supra, wherein the change of the act from the notice devoted the whole fund for a certain purpose, when the notice stated that only a portion of the fund would be devoted to said purpose.
As to the present act, there was a change in the boundary lines as set out in the notice by the elimination of a small portion of the territory as described in the notice. Whether the elimination of this territory was material or not, the bill of complaint as amended fails to set out the facts which may show the importance or materiality of the change and was subject to the respondent's demurrer, grounds 38, 40 and 41.
The trial court did not err in sustaining the demurrer to the bill, and the application for rehearing is denied.
GARDNER, BOULDIN, and FOSTER, JJ., concur.
1 Ante, p. 405. *Page 465