Barber v. Covington County Com'n

Decision Date01 March 1985
PartiesRoy P. BARBER and Carol Barber v. COVINGTON COUNTY COMMISSION, et al. 83-1306.
CourtAlabama Supreme Court

Benton H. Persons of Murphy, Murphy, Persons and Bush, Andalusia, for appellants.

J. Fletcher Jones, Andalusia, for appellees.

SHORES, Justice.

Roy Barber and Carol Barber appeal from the circuit court's dismissal of their petition for a writ of mandamus. We affirm.

Roy Barber and his wife Carol Barber filed a petition for a writ of mandamus against the Covington County Commission and the individual members thereof, seeking to require the Commission to remove certain obstructions from, and prevent the further blocking of, a road leading to their property. The Commission filed a motion to dismiss the petition, stating that it failed to state a claim upon which relief could be granted. This motion was granted, and the Barbers appeal.

The Barbers alleged in the petition that the road in question has been a recognized public county road for over fifty years and provides the only access to their property. They further alleged that the road is being blocked and obstructed by Huron Anderson and that the Commission has failed to remove the obstructions, thereby denying them and the public access to their property. The Barbers also alleged that the Commission attempted to abandon the road, and they argue that, in so doing, it acted arbitrarily, capriciously, without good cause, and in violation of § 23-4-1, et seq., Ala.Code 1975.

The Barbers insist that the petition states a claim upon which relief can be granted. They argue that the Commission has general superintendence of the public roads within its jurisdiction, under § 23-1-80, Ala.Code 1975, and, pursuant to that section, has the power to reopen and maintain a public road that has been wrongfully obstructed and closed. They further argue that mandamus is proper in this case to compel the Commission to so act.

The Commission contends that the exercise of its powers pursuant to § 23-1-80 is discretionary and, in the absence of an allegation of fraud, corruption, or unfair dealing in relation thereto, is not subject to judicial review. We agree.

Mandamus is a drastic and extraordinary writ to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court. Martin v. Loeb & Co., 349 So.2d 9 (Ala.1977).

Section 23-1-80, Ala.Code 1975, reads as follows:

"The county commissions of the several counties of this state have general superintendence of the public roads, bridges and ferries within their respective counties so as to render travel over the same as safe and convenient as practicable. To this end, they have legislative and executive powers, except as limited in this chapter. They may establish, promulgate and enforce rules and regulations, make and enter into such contracts as may be necessary or as may be deemed necessary or advisable by such commissions to build, construct, make, improve and maintain a good system of public roads, bridges and ferries in their respective counties, and regulate the use thereof; but no contract for the construction or repair of any public roads, bridge or bridges shall be made where the payment of the contract price for such work shall extend over a period of more than 20 years."

This section confers upon the county commissions of this state the general superintendence of the public roads within their respective jurisdictions so as to render travel over the same safe and convenient. To this end, they have certain discretionary powers as enumerated in this section. In Wright v. Pickens County, 268 Ala. 50, 55, 104 So.2d 907, 912 (1958), the Court stated:

"The powers of courts of county commissioners with regard to public roads are prescribed in § 43, Tit. 23, Code 1940 [the predecessor of § 23-1-80]....

"It has been held that the exercise of the discretionary power given to the boards mentioned in § 43 cannot 'be restrained or reviewed, unless it has been in a fraudulent, corrupt, or unfair conduct of the business of the county.' Ensley Motor Car Co. v. O'Rear, 196 Ala. 481, , 71 So. 704, 705; Bentley v. County Commission for Russell County, 264 Ala. 106, 109, 84 So.2d 490, 493.

"In the O'Rear case it is said:

" 'In the location, erection, repair, or removal, or in the furnishing of the county's buildings, bridges, and roads, the court of county commissioners or board of revenue have a discretion that cannot be exercised for them by any other county official, or directed by any court, except only when their acts are such as amount to fraud, corruption, or unfair dealing. In the...

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27 cases
  • Graham v. Alabama State Employees Ass'n
    • United States
    • Alabama Court of Civil Appeals
    • 16 Noviembre 2007
    ...court's jurisdiction must be properly invoked." Deloney v. Teague, 508 So.2d 1174, 1176 (Ala.Civ.App.1987) (citing Barber v. Covington County Comm'n, 466 So.2d 945 (Ala.1985)). Mootness Before proceeding to the merits of the case, we must first consider whether Graham's appeal has been rend......
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    ...a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court. Barber v. Covington County Comm'n, 466 So.2d 945 (Ala.1985) "Ex parte Edgar, 543 So.2d 682, 684 (Ala.1989)." Ex parte Blankenship, 806 So.2d 1186, 1187 (Ala.2000). Just as the Bo......
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    ...refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." Barber v. Covington County Comm'n, 466 So.2d 945, 947 (Ala.1985). See also Ex parte Inverness Constr. Co., 775 So.2d 153, 156 Section 8-1-41(3), Ala.Code 1975, explicitly prohibit......
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    ...a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court. Barber v. Covington County Comm'n, 466 So.2d 945 (Ala.1985). In cases involving the exercise of discretion by an inferior court, mandamus may issue to compel the exercise of that......
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