Steele v. County Commissioners , 83 Ala. 304 ( 1887 )

CLOPTON, J.

— Tbe material question presented by tbe record involves tbe constitutionality of sections 1676 and 1677 of Code of 1876, wbicb provide for and regulate tbe establishment of private roads.

Tbe right of eminent domain antedates constitutions, and is an incident of sovereignty, inherent in, and belonging to every sovereign State. Tbe only qualification of tbe right is, that tbe use for wbicb private property may be taken shall be public. Section 13 of tbe Declaration of Bights in tbe constitution of 1819 declared: “Nor shall any person’s property be taken or applied to public use, unless just compensation be made therefor.” Tbe constitution did not assume to confer the power of eminent domain, but, recognizing its existence, limited its exercise by requiring that just compensation shall be made. Under this constitutional provision it was held, that tbe legislature could not, with or without compensation, take private property for private use; that a private road was a private use, and that sections 1187 and 1188 of Code of 1852, wbicb correspond with sections 1676 and 1677 of Code of 1876, were unconstitutional, so far as they undertook to confer authority to establish such road over tbe lands of another- without bis consent. — Sadler v. Langham, 34 Ala. 311. An amended or revised State constitution, should be interpreted in tbe light of its predecessors ; and when new provisions are introduced, they sboud be given a fair and legitimate meaning, and so construed, having regard, to their nature and purposes, as to accomplish tbe objects intended. In Naming tbe constitution of 1861, tbe declaration of tbe constitution of 1819, above quoted, was retained, and a new and additional provision was introduced, which, is as follows: “Private property shall not be taken for private use, or for the use of corporations, other than municipal corporations, without the consent of the owner; but the right of way may be secured by law to persons and corporations, over the land of persons and corporations ; also, the right to establish depots, stations and turnouts, to works of public improvement; Provided, just compensation be made to the owner of such land.” — Const., Art. Ill, § 30. It is manifest there was a purpose in the introduction of this new provision, which may be discovered from its nature, the circumstances under which 'it was introduced, and the causes thereof. These provisions were co-joined, and substantially incorporated in the constitutions of 1865 and 1868, as section 25 of the Bill of Eights; the only material alteration being, that compensation shall be made before the taking.

The makers of the present constitution deemed it necessary and proper to change in some respects the provisions in the constitutions next preceding, and framed section 21 of the Declaration of Eights so as to read as follows: “That the exercise of the right of eminent domain shall never be abridged, nor so construed as to prevent the General Assembly from taking the property and franchises of incorporated companies, and subjecting them to public use the same as individuals. But private property shall not be taken or applied to public use, unless just compensation be first made therefor; nor shall private property be taken for private use, or for the use of corporations, other than municipal, without the consent of the owner; Provided, however, that the General Assembly may by law secure to persons or corporations the right of way over the lands of other persons or corporations, and by general laws provide for and regulate the exercise by persons and corporations of the rights herein secured; but compensation shall, in all cases, be first made' to the owner.” It will be observed, that in respect to the power to secure to persons and corporations the right of way over the lands of other persons and corporations, the provision in the preceding constitutions is unchanged. The pur-poses of this section are unmistakable. It is intended to prohibit the abridgment of the exercise of the right of eminent domain, in reference to the property and franchises of corporations; to require just compensation in all cases; and to prevent private property from being taken for private use, or for the use of corporations other than municipal, without the consent o£ the owner, qualified by the proviso to the section. The same purposes which operated to introduce the power to secure the right of way to persons and corporations in the constitution of 1861, operated to continue it in the succeeding constitutions.

The authority of the court of County Commissioners to establish private roads was first conferred by the act of 1832. Under this authority, private roads had been established; and in Long v. Comm’rs, 18 Ala. 482, the proceedings for this purpose were held to' be regular. No constitutional question was raised or considered, but the decision was generally considered as a silent recognition of the constitutionality of the act. When the framers of the constitution of 1861 were brought to consider the exercise of the right of eminent domain, they were faced by the decision in Sadler v. Langham, supra, holding that the legislature had no authority to confer such power, which decision was made two years previously. Having .been taught by experience the imperious necessity of some power to establish private roads, so that there may be secured to the owners of lands, shut in by lands of co-terminous proprietors, a way of egress and ingress to and from the public roads, thereby preserving and enhancing the value, promoting the owner’s full and lawful use and enjoyment of his property, and serving the public interest, by putting the citizen in position to perform public services, and to remedy the consequences of the decision that the legislature had no such authority under the constitution of 1819, they introduced the provision, that the General Assembly may secure by law to individuals and corporations the right of way over the lands of other persons and corporations. The uses of some incorporated companies, such as railroads and turn-pike roads, had been pronounced public by a series of decisions, and were so understood when the constitution was adopted. The power to secure the right of way applies to persons and corporations without discrimination, and the effect is to put both in the same class in respect to the character of the use. The proviso in the section of the constitution serves the natural and appropriate office of restraining or qualifying the preceding general provisions ; and its operation is to except the right of way over the lands of persons and corporations from the general prohibition against taking private property for private use, by impliedly declaring the same to be a public use. The conclusion is, that the legislature may provide for the establishment of private roads, and that private property, to the extent of the right of way, may be taken for such purpose, upon just compensation being first made, and that the enactment of sections 1676 and 1677 is a constitutional exercise of the power. — Scherr v. Detroit, 45 Mich. 626.

Notwithstanding this conclusion, we are compelled to affirm the judgment of the Circuit Court dismissing the certiorari. When the court of County Commissioners proceeds to open and lay out a road to the injury of a' party, he has Ms remedy by certiorari to the Circuit Court, and by appeal to this court; but a certiorari will not lie to review the judgment of the court of County Commissioners dismissing an application to establish a private road, on the ground that there is no constitutional authority to establish such road over the land of another without the consent of the owner. Brooks v. Kelly, 19 Ala. 72. On a common-law certiorari, the only judgment which can be rendered, is to affirm or quash the proceedings. The trial is not de rovo. The establishment of a private road rests largely in the discretion of the court of County Commissioners, which discretion can not be reviewed by certiorari. — Comm'rs v. Hearne, 59 Ala. 371. In a case like the-present, the remedy is by mandamus from the Circuit Court to compel the court of County Commissioners to vacate and annul the order of dismissal, and to proceed and determine the matter. — Ex parte Lowe, 20 Ala. 330; Ex parte Grenshaw, 60 Ala. 378.

Affirmed.