Commissioners of Roads & Revenue v. Thompson

CHILTON, J. The questions for our decision are-r-1. Can this writ of error lie in the name of the commissioners’ court ? 2. Can the action of that court be reversed on certiorari by petition of an individual showing injury to his private property by the action of the court ? 3. If the circuit court had jurisdiction, is the judgment quashing the order establishing the highway erroneous ? [137] 1. The first question involves the correctness of the order passed in the circuit court, allowing the commissioners of roads and revenue to be made a party defendant in that court. If they were proper parties to resist the petition of the defendant in error in that court, it follows, they are entitled to prosecute the writ of error in this court. The statute of 1836, (Clay’s Dig. 507, § 3,) gives to the respective commissioners’ courts “ full power and authority to order and establish new roads; to discontinue such as have, or may at any time become useless; to alter roads so as to make them more useful and convenient, and any order of a commissioners’ court by which a road is recognized as a public road, shall in all cases be prima facie evidence of that fact: provided, that said court shall in no instance grant an order to establish, discontinue, or change a public road, unless the person or persons petitioning for the same shall have given at least thirty days’ notice of the intended application, by advertisement at the court house door, and three other public places in the county,” &c. The second section of the act prescribes the manner in which the new road may be established, or an old one changed, viz: that a jury of seven householders shall be appointed by the court, a majority of whom may act, who shall be sworn, &c. to lay off and mark the proposed road, and report to the court. The third section provides for compensation to the owners of lands, who are damaged by the road. The act does not specify any mode for revising the action of the commissioners’ court, nor designate the persons who may be made parties to a controversy impeaching the regularity of the proceedings had iu the commissioners’ courts. But inasmuch as the legislature has thought proper to commit to the commissioners of roads and revenue full power and authority over the subject of ways, we think there is no reason for saying they are not the proper party defendant in a proceeding to annul what they have ordered. The public, in such proceeding, should have some representative, and the commissioners whose acts are impeached, and to whom such public interests are confided, are, in our opinion, the proper parties to the writ of error. The motion to dismiss the writ is therefore overruled. It [138] seems that the commissioners’ court of roads, &c. have been parties defendants to writs of error in this court, and that no objection was made. This is at least persuasive to show what has hitherto been deemed the correct practice. See Smith v. The Commissioners of Roads, &c. 1 Stew. Rep. 183; State ex rel. Driver et al. v. Commissioners of Roads, &c. 3 Porter’s Rep. 412; see also Lawton et al. v. The Commissioners of Highways, 2 Caine’s Rep. 179. 2. In Moore v. Hancock, 11 Ala. Rep. 245, the question is left undecided, whether a certiorari will lie to the commissioners’ court to quash an order changing a public road, except it is sued out in the name of the State, upon the relation of the party illegally and injuriously affected. The court inclined to the opinion that it will not. In England, the court of King’s Bench having a general superintendency over inferior tribunals, not only may award a certiorari to inferior courts, but also to persons invested by the parliament with power to decide upon the rights of the citizen, even though it is declared their action shall be final. 4 Hawk. 144. The writ, though usually granted in the name of the king, might, at the discretion of the court, be granted at the suit of the party. 1 Bacon’s Ab. 349, 350. The judges of the circuit courts have power to issue writs of certiorari returnable to the circuit courts, so as to revise the proceedings of inferior jurisdictions. Clay’s Dig. 294, § 29. So this court, possessing a general supervision over the other courts of the State, has power to correct their errors by issuing the proper remedial writs. Digest, 285, § 1; Bell et al. v. Payne & Williams, 2 Stew. Rep. 413. Several decisions of this court indicate this (the writ of certiorari) as the appropriate remedy in the case made by the record. Smith v. Comm’ers of Roads, &c. 1 Stew. Rep. 183; The Intendent and Council of the Town of Marion v. Chandler, 6 Ala. Rep. 900; Ex parte Tarleton, 2 Ala. Rep. 35; John, a slave, v. The State, 1 Ala. Rep. 95; The State ex rel. v. Williams, Ib. 342; see also Commonwealth v. Coombs, 2 Mass. Rep. 489; Ib. v. Hall, 8 Pick. Rep. 440; 13 Ib, 195; Lawton v. Commissioners, &c. 2 Caine’s Rep. 179; 2 Binn. Rep. 250; 3 Ham. Rep. 383; 8 Verm. Rep. 271. We conclude from these and other adjudged cases which might be cited, that the circuit [139] court could lawfully take cognizance of this cause by certiorari,| and that the commissioners of roads, &c. were properly admitted defendants. The act here complained of is a judicial proceeding, and should not be confounded with the acts of corporations possessing legislative, executive or ministerial powers. See 2 Hill’s (N. Y.) Rep. 14, and cases there cited. 3. It remains to consider whether the judgment of the circuit court is correct. The statute above referred to requires that thirty days’ notice of the application to establish a new road shall be given by advertisement, &c. Until this was done, the commissioners had no power to establish the road. The record does not show that such notice was given, or that any advertisement was made, and therefore fails to support the jurisdiction of the court. It is a well settled rule of law, that the records of a court of limited jurisdiction should discover every fact essential to the validity of its sentences. Lister v. Vivian et al. 8 Por. Rep. 375; Blann, guardian, &c. v. Grant, adm’r, 6 Ala. Rep. 110; Samuels v. Findley, 7 Ala. Rep. 634. As the application was not preceded by the notice required by the statute, and the defendant in error has been enjoined by the order establishing the road, as is shown by the statements in the petition for the certiorari, which were admitted in the court below to be true, it results that there is no error in the judgment quashing the order. In Commonwealth v. Coombs, 2 Mass. Rep. 489, it was held by the court (Parsons, C. J.) that the proceedings should show that notice had been given to the inhabitants of the town, and this was one of the grounds on which the proceedings were quashed on certiorari. In the Commissioners of Roads v. Murray, 1 Rich. Rep. 335, the proprietors of the lands over which the road passed, had given their consent to its establishment. The act required that three months’ notice should be given by the commissioners previous to laying out the road, in the settlement through which it was to pass— the court held that unless the notice had been given, the commissioners had no authority under the act to open the road, and to fine the defendant for not working on it. In that case, the effort was collaterally to impeach the proceedings, and one of the resolutions showed that the clerk was [140] required “ to give the notice required by law of the application to be made to the legislature to lay out said road,” &c. which was ordered to be laid out about a year after the notice was required to be given, the order establishing it reciting, “ the said road being a part of the road petitioned for by this board to the legislature at its last session.” The court say, “the commissioners are public agents, and it is fair to presume, when they do an act, that they have complied with all the pre-requisites to the exercise of their power.” This view was certainly correct under the circumstances of that case; for the regularity of the proceeding could not be collaterally impeached, when it was shown that the court had jurisdiction. But here the application is to vacate the irregular proceedings by a party injured, who propounds her interest, and the record does not show she had any opportunity to protect her interest before the commissioners’ court-no notice having been given. We are clearly of opinion that it should be affirmatively shown by the proceedings, that notice had been given as the statute requires. Let the judgment of the circuit court be affirmed.