Commissioners of Decatur County v. Curry

Hines, J. (After stating the foregoing facts.) It is insisted by counsel for the .plaintiffs, that the ordinary of Decatur County alone has authority to lay out a new public road in that county; and that the county commissioners are without power and jurisdiction to do so. We cannot agree with counsel in this cqntention. It is true that § 640 of the Civil Code of 1910 declares, that, “ on application for any new road, the ordinary shall appoint three road commissioners, residing as near where such road is intended to pass as possible; and if they find it of public utility, they must proceed to mark it out, and make their report under oath to such ordinary that it was laid out and marked conformably to law.” Where ordinaries of the several counties of this State have jurisdiction of county matters, including the laying out of new public roads, the application for a new public road must be made to the ordinary of the county in which the proposed road is to be established. But where county commissioners are created by law and are given jurisdiction of county matters, embracing the establishment of new public roads, then the application for a new public road must be made to such commissioners. The constitution of this State provides “ The General Assembly [384] shall have power to provide for the creation of county commissioners in such counties as may require them, and to define their duties.” Art. 6, sec. .19, par. 1 (Civil Code, § 6548). By the act of September 26, 1891 (Ga. Laws 1890-1, vol. 2, p. 926), a board of county commissioners was created for this county, and “all the powers and duties of -the ordinary of Decatur County, so far as the same relates to roads,” were conferred upon this board. Furthermore the alternative road law is of force in this county; and under that law, “The commissioners of roads and revenues, ordinary, or such other officer as has charge of county matters of each county in this State, shall have the sole right to lay out, open, change, or discontinue public roads therein.” Civil Code (1910), § 694. Clearly then, in Decatur County, the commissioners have the sole .right to lay. out and establish new public roads. But the method of laying out and establishing public roads is that prescribed in the Civil Code, § 640 et seq., with substitution of commissioners for the ordinary in any county where the former have charge of county matters. Counsel for the plaintiffs rely on Howell v. Commissioners, 118 Ga. 635 (45 S. E. 241), as authority for the proposition that the ordinary alone, in a county where county commissioners have charge of its county affairs and the alternative road law has been adopted, has authority to lay out and establish a public highway. That decision held that the alternative road law only repealed “ so much of the old road law as is inconsistent with • it; ” and that section 520 of the then Political Code, now section 640 of the Code of 1910, not being, inconsistent with the alternative road law, must be complied with before a new public road can be lawfully established in a county in which the alternative road law is operative. In that case this court said: “Under the old law the sole right to lay out, open, change or discontinue public roads is vested in the ordinary, or the commissioners of roads and revenues, as the case may be.” This language clearly shows that this court never intended to hold, in that decision, that the ordinary, in a county where county commissioners had charge of the affairs of said county, had jurisdiction to establish public roads; but this court only intended to hold that in-such a county the commissioners must follow the method pointed out in section 640 et seq. of the present Code, in [385] laying out public roads.' This decision was followed in Barham, v. Weems, 129 Ga. 704 (59 S. E. 803), Hutchinson v. Lowndes County, 131 Ga. 637 (62 S. E. 1048), and in Mitchell County v. Hudspeth, 151 Ga. 767 (108 S. E. 305). But in none of these eases has this court decided that the ordinary has sole authority ' to establish public roads in a county where a board of county commissioners has been created by act of the legislature, and has been given charge of county matters. On the contrary the law is plain, that in 'such a county the county commissioners alone have the exclusive jurisdiction to lay out and establish public roads; but they must follow the method prescribed in the Civil Code (1910), § 640 et seq. The county commissioners undertook to lay out this road in accordance with the method provided in § 640 et seq. Under this method, “All persons, their overseers or agents, residing- on land which such. road goes through, except applicants for the road or alteration, must be at the same time notified in writing, personally or by leaving it at their most notorious place of abode,” of the application for the establishment of a public road (§ 642). No notice was given to the plaintiffs of the application to lay out this road through their lands; but it is insisted that they were applicants for its establishment, and, therefore, not entitled to notice. They did not sign the application themselves, but it is claimed that it was signed by “Jas. R. Donalson, Agt.,” and that he signed the same as agent of the plaintiffs. Here Donalson did not undertake to sign the names of the plaintiffs to the application for the laying out of this road; and by his signature as above he does not even purport to act for the plaintiffs. The application for establishing this road, so signed by Donalson, without more, makes it his individual application. Civil Code (1910), § 3570. Before one can be held bound by acts of another who assumes to represent him, due proof of agency must be made. Brooke v. Lowe, 122 Ga. 358 (50 S. E. 146). When it is sought to estop one by the act of an agent, it must be affirmatively shown that the agent was acting within the scope of his authority. Williams Wagon Works v. Small, 19 Ga. App. 600, 602 (91 S. E. 920). It is asserted by counsel for the plaintiffs in error, in their brief, that Donalson was the agent of the plaintiffs, and that this was so admitted by them. We find no such [386] admission by the plaintiffs. It does appear from the evidence of Donalson that he was acting for the plaintiffs, in looking after their farm and returning their lands for taxation. Such agency would not authorize him to sign an application for the laying out of a public road through their lands. Besides, it was shown by the plaintiffs that Donalson had no such agency. His' act in signing the petition for the establishment of this road would not bind the plaintiffs without evidence that they authorized, or assented to, his act in so doing afterwards. Fulton County v. Amorous, 89 Ga. 615 (16 S. E. 201). As the commissioners were proceeding to condemn a certain portion of plaintiffs’ land under the Civil Code (1910), § 5206 et seq., and where there was no compliance with § 642, which requires that notice of such application be given as therein provided, the trial judge did not err in granting the interlocutory injunction prayed. Mitchell County v. Hudspeth, 151 Ga. 767 (supra). The above ruling makes it unnecessary to consider any of the other questions raised in the record. Judgment affirmed. All the Justices concur.