Commissioners' Court v. Thompson

CHILTON, J. In a case between these parties, reported in 15 Ala. 134, we held, that the record of a court of limited jurisdiction should contain every fact essential to the validity of its judgment, and, as in that case the record failed to disclose that thirty day’s notice had been given, as the statute required, of the application to be made for the establishment of the road, the proceedings of the court establishing it were adjudged bad, and properly quashed. The genral rule in respect to the jurisdiction of courts seems to be, “that nothing shall be intended to be out of the jurisdiction of a superior court, but that which specially appears to be ’ so; and on the contrary, nothing will be intended to be within the jurisdiction of an inferior court but that which is so expressly alleged.” — Peacock v. Bell & Kendall, 1 Stra. Rep. 74; [697] Archb. Civil Pl., 290; Rex v. Mayor, &c., of Liverpool, 4 Burr. 2244. “ Inferior courts,” says Bacon, “ are bound, in their original creation, to causes arising within such limited jurisdiction; hence it is necessary for them to set forth their authority; for nothing shall be intended within the jurisdiction of an inferior court, but what is expressly alleged to be so.” — 2 Bac. Abr. by Bouv. 630, Courts, d. 4. It has been repeatedly held that where the court is one of limited jurisdiction., though it may not, strictly speaking, be an inferior court, the cause must appear on the record to be within the jurisdiction. — Lord Conynsby’s Case. 9 Mod. 95; Wood v. Wagnon, 2 Cran. 9; Capson v. Van Noorden, ib. 126; Turner v. The Bank of N. America, 4 Dall. 8; ib. 7; ib. 13; Abercrombie v. Dupnis, 1 Cran. 343; 4 ib. 46; and it must appear from the face of the proceedings that such courts have acted within the scope of their jurisdiction. — 2 Bac. Abr. by Bouv. 630, and the .numerólas cases cited in notes. When the jurisdiction of the court, in the particular case, is once established upon the record, then all reasonable intendments will be made in favor of the regularity of the sentences or decrees of such court. — Key, adm’r, v. Vaughn et ux., 15 Ala. 497, and cases cited. So where the or.der of the Commissioners’ Court of Roads and Revenue, appointing a jury to view, &c., a proposed road, required them to be sworn, and their report certified that they proceeded to discharge the duty devolved upon them by the order, “ after being duly sworn,” we intended, in favor of the regularity of the judgment, that they were .duly sworn, notwithstanding no certificate or copy of the oath appeared in the record. — Long v. The Commissioners of Roads and Revenue of Butler county, at the last term. But the jurisdiction must be shown. — Taliaferro v. Basset, 3 Ala. 670. Applying these principles to the case before us, we think it very .clear that the record does not affirmatively ehovv the jurisdiction of the court over the road, which is established by its order. The Commissioners’ Court is established and organised in each county, and its jurisdiction over the subject of roads, &c., is co-extensive with the limits of the county. If then the proposed road does not lie within the county of Talladega, the Commissioners’ Court of that county had no jurisdiction whatever to establish it. It must then appear from the re [698] cord that it does lie within the county, otherwise the proceeding is irregular, unless we can intend that it is within the jurisdiction of the court. But we have already seen that such intendment cannot be indulged, and that it must affirmatively appear from the record itself; not appearing, it results that the order establishing the road was irregular, and the same was properly quashed by the Circuit Court. The question, as to the right of the party injured to revise such cases as the present upon certiorari, was fully discussed and settled in 15 Ala. 134, in a case between the same parties, and hence we deem it unnecessary to go into that question now. We do not agree with the counsel for the plaintiff in error, that the failure of Mrs. Thompson to appear, and raise this objection of the want of jurisdiction, is a waiver of it on her part. — See Taliaferro, adm’r, &c., v. Bassett & Wife, 3 Ala. 670. We have considered the several eases to which we have been refered, and do not conceive that they militate against the view here taken. Let the judgment be affirmed.