Brooks v. Kirby

CHILTON, J. It was early decided by this court, that nb appeal or writ of error would lie from the Commissioners’ Court of roads and revenue, to the Circuit or Supreme Court.—Ricks v. Hall, 4 Por. 178; Tarleton, ex parte, 2 Ala. 35; Hill v. Bridges, 6 Por. 197; hut if the Commissioners’ Court proceeds to lay out a road to the injury of a party, the person so aggrieved has Ms remedy by certiorari to the Circuit Court, and by writ of error from that court to this. — Commissioners’ Talladega Co. v. Thompson, 15 Ala. 134; Barnett v. The State, ib. 829. So also, when that court, in a proper case for its action, refuses to act, it may be required to proceed by manda [75] mus issued from the Circuit Court, from which court a writ of error will lie to this.—State ex rel. Driver v. The Commissioners’ Court Roads & Rev. of Talladega Co., 3 Por. 412. But the court awarding the mandamxis cannot prescribe the judgment to be rendered, iu cases where the inferior court is invested with a discretion. It can only be required to exercise its discretion. Cuthbert et al. v. Lewis, 6 Ala. 268. In the matter of establishing roads, &c., and granting ways to private individuals, the Legislature has invested the Commissioners5 Court with enlarged discretionary powers, and from the very nature of the proceedings, and the constitution of the court, when it acts, and its decision rejecting an application, predicated upon the evidence and the considerations of convenience and public necessity which may properly influence it, we do not see how it is to be controlled by any other court. It is made the exclusive judge of the weight cf the evidence, of the necessity which exists for the proposed load, &c., and of the ■inconvenience which may result from its establishment. Its members may be well acquainted with all the facts, and may predicate their action upon their personal knowledge of those facts, which the record would not disclose. All this but proves that so long as the action of the court does not invade private rights illegally, no one has a right to revise or call in question its decisions made in the exercise of its discretionary powers. The cases in 15 Ala. above cited, and Long v. The Commissioners' Court of Butler, at the last term, were all cases in which the court had established roads, and the parties whose rights were injuriously affected sought to quash the proceedings for illegality upon their face. We have been unable to find any case where a certiorari has been awarded to reverse the decision of the Commissioners’ Court, in refusing to establish a road, or to grant the prayer of such petitions. We think that it was the duty of the Commissioners’ Court to have proceeded on this petition, and to have investigated and determined upon the merits of the proposed right of way, in view of all the facts and circumstances which could have been adduced before it. We are of opinion also, that the court should have disregarded the demurrer, as withdrawing from it the discretion with which the Legislature has invested it over the subject matter of the petition, and as a proceeding never eontemplat76 ed by the statute. Nor are we prepared to say that a mandamus would not lie from the Circuit Court in the case before us, to require the Commissioners’ Court to proceed and exercise its discretion, since the record shows that its action was not predicated upon the facts as they might have been made to appear, but upon the supposed legal insufficiency of the petition, which induced the court to repudiate the application, upon the mistaken idea perhaps, that a simple enclosure of waste lands would constitute a u plantation” in the sense in which that term is used in the act. We will, however, leave this an open question; all we now decide is, that the sentence of the Commissioners’ Court of roads and revenue, refusing to establish the private road petitioned for, cannot be reviewed on certiorari. The proceedings in the Circuit Court were cor am nonjudice, and the writ of error to this court must be dismissed.