State v. Board of Revenue and Road Com'rs of Mobile County

• Citation: 95 So. 374,209 Ala. 98
• Decision Date: 06 February 1923
• Docket Number: 1 Div. 268.
• Parties: STATE EX REL. CITY OF MOBILE v. BOARD OF REVENUE AND ROAD COM'RS OF MOBILE COUNTY.
• Court: Supreme Court of Alabama

95 So. 374

209 Ala. 98

STATE EX REL. CITY OF MOBILE v. BOARD OF REVENUE AND ROAD COM'RS OF MOBILE COUNTY.

1 Div. 268.

Supreme Court of Alabama

February 6, 1923

Appeal from Circuit Court, Mobile County; Joel W. Goldsby, Judge.

Petition of the State of Alabama, on the relation of the City of Mobile, for writ of mandamus to the Board of Revenue and Road Commissioners of Mobile County. Judgment denying the writ and relator appeals. Affirmed.

Frank J. Yerger, of Mobile, for appellant.

Gordon & Edington, of Mobile, for appellee.

SOMERVILLE J.

The proceeding is by petition for a writ of mandamus to compel the respondents, the board of revenue and road commissioners of Mobile county, "to take charge of and exercise the control, management, and supervision of" a certain street in the city of Mobile, which duty was lodged and vested in said board by the act approved August 2, 1907 (Loc Acts 1907, p. 727). That act was held to be constitutional and the duty thereby enjoined upon the said county board was held to be enforceable by the writ of mandamus, in State ex rel. City of Mobile v. Board of Revenue & Road Comm. of Mobile County, 180 Ala. 489, 61 So. 368.

For answer to the petition, the respondents say that the city of Mobile was authorized by the local act approved November 1 1921 (Acts Sp. Sess. 1921, p. 50), to resume control and supervision of any of the city streets by a resolution adopted by the governing body; that on June 6, 1922, said city adopted such a resolution as to the street here concerned, in accordance with the provisions of said act; section 2 of said resolution recites that "the sum of one dollar has been ascertained and is hereby designated as the reasonable charge or sum to be paid by the county of Mobile to the city of Mobile for said county's being relieved of the burden of the control, management, supervision, repair, maintenance, and improvement" of said street; that said resolution became duly effective; and that on June 12, 1922, said county board, by appropriate action, yielded its authority over said street, and duly paid to the city the sum of $1, as fixed by said resolution.

A demurrer challenges the sufficiency of the answer, on the ground that the consideration of $1, ascertained and designated by the city board of commissioners as being "the reasonable charge" to be paid by the county under the local act of November 1, 1921, was nominal merely, and not...