Commissioners Court v. Hearne , 59 Ala. 371 ( 1877 )

BBTCKELL, C. J.—

The continuous course of decision from an early day has been, that the Court of County Commissioners in reference to the establishment and change of public roads, exercises a quasi legislative authority, which other tribunals will not assume to revise or control, unless its action is productive of injury to, o*r interference with the rights of property of individuals. If in the establishment,, or the change of a public road, the lands of a private person-are to be taken, he has an individual interest involved, and on certiorari, the Circuit Court will at his instance inquire-into the legality and regularity of the proceedings of the Commissioners Court. The court is of limited, statutory jurisdiction, and to support its proceedings when assailed on certiorari, its records must affirmatively show jurisdiction. Three things are essential to its jurisdiction, to establish or change a public road—the location of the road Avithin the county—an application- in Avriting for the proposed establishment, or change, of Avhich notice for thirty days, must have-been given by adArertisement at the court-house door of the county, and three other public places, two of which must be in the immediate neighborhood of the road. Unless the record affirmatively discloses the existence of each and all these things, on certiorari, the orders of the court can not be sustained. An affirmation in the record that due or legal notice, or proper notice has been given, is not the statement of a fact, but rather a conclusion of law, and as intendments can not be made to support the jurisdiction, will not sustain the order of the court.—Molett v. Keenan, 22 Ala. 484; Keenan v. Commr’s Court, 26 Ala. 568.

The record of the Commissioners Court, Avhen the certiorari was sued out, and until service had been made on every member of the court, except the probate judge, did not disclose that the road, the route of which it was proposed to change so that it would pass through the lands of the appellee, Avas situate in LoAvndes county; nor did it disclose that notice of the application for the change had been given, othewise than by the general statement, that it was shown to the satisfaction of the court, that the proper legal notice of application to change said road had been given. VieAvers had been appointed to mark and locate the road as the change was proposed, who had acted, reported their action, and their report had been confirmed. The ovex*seer xvas directed, (after the issue of the writ of certiorari,) by the probate judge to open the road as the change had been ordered, and the day after the service of the Avrit on the commissioners he makes return of the order, and singularly in that return, affirms that about which the record was silent, that the road lies in Lowndes county. There is also found in the record, an order confirming the report of the overseer, which contains a recital of every fact essential to the jurisdiction of the court, and the regularity of its proceedings. This order also states in substance that the matter of the application for the change of the road had been continued until the day of the making of the order, which was a regular term of the court. After the court had ordered the change of the road, appointed viewers to mark out the road as changed, and they had made report which the court had accepted, the only duty of the court was to make an order for the opening of such road. It is not contemplated by the statutes that there shall be any confirmation by the court of the action of the overseer. Ve will not say such confirmation is irregular, or improper. But after the court had ordered the change of the road, appointed viewers, and accepted their report, the right of the petitioner to a certiorari for the revision of their proceeding, was complete.—Smith v. Commr’s Court, 1 Stew. 183. The certiorari which was issued, was a command that the court should certify its records as they existed, at the time of its issue, and not a record subsequently made, the validity of which was not questioned. Beside, the mandate of the circuit judge granting the writ of certiorari, directed a stay of all proceedings until the further order of the Circuit Court. This subsequent proceeding, was in direct violation of and contempt of this mandate. It was competent for the Commissioners Court, as it is for every court of record, to amend its records nunc pro tunc, if there be matter of record, authorizing the amendment. And on a proper application, supported by proper proof, the Circuit Court would doubtless have modified the order for the stay of proceedings, that such amendment should be made, and would have authorized a further return to the certiorari, to embrace the amendment, if properly made. This subsequent entry of record, coming as it does under questionable circumstances, not a part of the record when the certiorari issued, made in violation of the order of the judge granting the writ, was properly disregarded by the Circuit Court. Disregarding it, the record does not disclose the jurisdiction of the Court of County Commissioners, and its order was properly reversed.

Let the judgment be affirmed.

Stone, J., not sitting.