Commissioner's Court v. Ballard

McCLELLAN, J. This is an appeal from a judgment, in response to petition for certiorari, annulling an order of the commissioners’ court of Coffee county, establishing and directing the opening of a private road upon the petition of L. C. Cook; It is a further projection of the contest, fully stated in the report of the appeal in Ballard v. Cook, 166 Ala. 105; 52 South. 147. The petition for certiorari asserts that the “above and foregoing orders and decrees” made by the commissioners’ court in the proceeding, “show on their faces that the said court was without jurisdiction to make and enter the same, and are therefore illegal and void.” The court below ruled that the judgment for the costs on appeal to the circuit court (in respect of the assessment of damages) of the proceeding was a condition precedent to “establishing said private road.” We have not been referred to, and are unable, to find, any warrant for such a conclusion. Proceedings for the establishment of private roads are largely governed by the methods, etc., prescribed for the establishment of public roads. —-Code, § 5842. Code, § 5821, provides that in proceedings under Code, § 5819, the costs shall be paid by the party petitioning, unless the commissioners’ court orders the costs paid out of the county treasury. If we assume, for the occasion only, that the stated provisions of section 5821 have force in this instance, it is patent that there was no legislative purpose to fix the payment of costs as a condition to the establishment of the road, public or private. Certainly, in the absence of express statutory declaration to that effect, no such limitation could be asserted. If hardship attends the method of road establishment in this respect, it is the Legislature alone that can afford the remedy. Other considerations, leading to the conclusion we foreshadow, might be stated, but it is not at all necessary. [504] It is insisted for appellee that the order establishing the private road in question was attempted to be made at a time other than that at which the regular terms of the commissioners’ court are provided for by law (Code § 3310), and from this premise appellee’s counsel cite the line of authority pronouncing invalid judicial acts by courts of law and equity at times and places other than those authorized by positive law. In proceedings to establish public or. private roads the commissioners’ courts are clothed with and exercise judicial, executive, and legislative power. — Ballard v. Cook, 166 Ala. 110, 52 South. 147. Such courts, in such matters, are not subject to the rule counsel assert. — Code, §§ 5765, 5767, 5774, 5819. A reading of these sections will also> demonstrate that-the lawmakers did not intend to restrict such “boards,” in dealing with public or private roads, to the regular terms provided by law. The judgment of the circuit court annulling the order of the commissioners’ court is reversed, and a judgment will be entered here dismissing the petition for certiorari. The costs of the circuit court below and the costs on appeal will be taxed against the appellee. Reversed and rendered. Mayfield, Sayre, and Somerville, JJ., concur.