Molett v. Keenan , 22 Ala. 484 ( 1853 )

GTBBONS, J.

The Commissioners’ Court of Eoads and Revenue is a court of special, limited jurisdiction, and its. proceedings, to be valid, must show upon their face affirmatively, that the court has acquired jurisdiction of the subject matter by taking those preliminary steps directed by the statute, in cases providing for its action.

This was the doctrine held in the case of The Commissioners of Roads and Revenue of Talladega county v. Thompson, 15 Ala. 134; and the same doctrine was re-asserted at the present term of this court in the case of Lamar v. Commissioners of Roads and Revenue of Marshall county, 21 Ala. 772.

Our acts providing for the establishment of public roads, and conferring this power upon the Commissioners’ Court, amongst other things, says: “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 at three other public places in the county.”

This notice must undoubtedly appear upon the proceedings of the court establishing a new road, before its jurisdiction over the subject matter begins. No intendments or presumptions can be indulged in favor of its jurisdiction, but tbe fact itself of tbe notice must affirmatively appear. Tbe record in tbe present case recites, that ‘'notice in all respects according to tbe statute was proven, by advertisement at tbe court bouse door and three other public places in the county.” But it does not show bow many days the notice was given, except that it was given according to the statute. Here, then, to support tbe jurisdiction, we have to indulge in the presumption, that tbe notice was given for thirty days, because that is tbe requirement of tbe statute.

But it is insisted that, inasmuch as the statute itself is referred to in the record, and a compliance with it asserted, we are bound to infer that tbe requisite notice was given. In that consists tbe vice of tbe argument. We cannot indulge inferences or presumptions, in order to confer jurisdiction, where the doing of a particular act is a condition precedent to the vesting of jurisdiction; but must require that the fact itself, without being aided by inferences or presumptions, should affirmatively appear to have been done. We cannot consider the recital in the record as any thing more than an assertion that due and legal notice had beem given, or that notice had been given according to law. These would be clearly incompetent to give the court jurisdiction, as they would be legal conclusions, and not facts. Tbe case of Long v. Commissioners’ Court, 18 Ala. 482, cited in argument, is not applicable to tbe present case. That was a proceeding by the Commissioners’ Court for the establishment of a private road, and no notice in such a case is necessary, under the statute^ to give the court jurisdiction. For the establishment of this class of roads, the mere application of one or more persons is sufficient to give the court jurisdiction of the subject matter. In tbe case cited, Long, over whose land tbe road passed, appeared in court, and made himself a party, and participated in tbe proceedings as to the assessment of bis damages. This court beld, that tbe court having obtained jurisdiction according to tbe statute, and Long being a party actor in tbe court below, like any other suitor in court, was bound to raise all objections to tbe proceedings in tbat court, ox be would not be heard in an appellate court. The difference between that case and the one at bar, is, that in that case, tbe court bad acquired jurisdiction of tbe subject matter, and also of tbe persons litigant before it; while in tbe case at bar, tbe jurisdiction of tbe subject matter is denied. This jurisdiction, we think, tbe record does not sufficiently show.

Where a new road is established by tbe Commissioners’ Court, tbe statute requires that tbe jury appointed by tbe court to view and mark it out, should take tbe following oath, that they “ will view and mark out tbe road named in tbe order directed to them from tbe Commissioners’ Court, in pursuance of said order, to tbe greatest advantage to tbe public, and with as little prejudice to enclosures and private individuals as convenient, without favor or affection, malice or hatred, and to tbe best of their skill and knowledge.” Tbe oath taken by tbe jury of viewers in tbe present case, was: “We do solemnly affirm, that we will impartially view and mark out said road, as named in said order, and to us directed, to tbe best of our skill and ability.” This, as appears by tbe bill of exceptions, was the only oath which was administered to the jury.

Our conclusions are, that tbe oath administered to tbe jury of viewers was not tbe statutory oath, and was too wide a departure from it to be sustained. Tbe proceeding was purely a statutory one, and tbe directions of tbe statute should, in all respects, be at least substantially complied with. Tbe oath administered to tbe jury, compared with that required by tbe statute, was defective in substance.

Tbe statute directs, that “ where a new road is established, tbe owner of land over which it passes must, at or before tbe next term of tbe Commissioners’ Court, apply to said court for damages, for tbe injury which be may have sustained by its establishment; and it shall be tbe duty of tbe court, to cause a jury to be empanneled and sworn to inquire of such damages, in which inquiry the jury shall be charged to take into consideration tbe advantages and disadvantages accruing to such applicant, and to give their verdict accordingly ; and tbe damages (if any,) assessed shall be paid out of tbe county treasury; Provided, tbe court may, in their discretion, order tbe same jury who lays out tbe road to be empanneled to assess tbe damages, and may also appoint in tbe order tbe time at which the road shall be cut out.” Clay’s Digest 507 § 5.

Under this section of the act, the court undoubtedly has the power to direct the same jury who view the road, to assess the damages to the individuals over whose land the road passes; but in case they are so directed, they should be sworn and charged with a view to the assessment of such damages, as directed by the act. This was not done in the present case, and the jury which assessed the damages did so without having taken the requisite oath, and without being charged as the statute directs. This, of itself, was an irregularity fatal to the proceedings, so far as the defendant in error was concerned.

We do not think the defendant in error had any right to challenge jurors, after they were empanneled and entered upon their duties. All such challenges should be made before the jury are sworn, and before Ihey enter upon their duties. The challenges in this case were too late, and were property overruled.

We do not deem it necessary to notice the other assignments of error, as they mostly grew out of the proceedings upon which we have airead}?- expressed an opinion, and will not probably arise on another trial.

The judgment of the Circuit Court is affirmed.