Gardner v. Stevens, 1 Div. 794

• Decision Date: 19 February 1959
• Docket Number: 1 Div. 794
• Citation: 269 Ala. 213,111 So.2d 904
• Court: Alabama Supreme Court
• Parties: James V. GARDNER v. Leroy N. STEVENS et al., Members of Board of Revenue and Road Commissioners, Mobile County.

Page 904

111 So.2d 904

269 Ala. 213

James V. GARDNER v. Leroy N. STEVENS et al., Members of Board of Revenue and Road Commissioners, Mobile County.

1 Div. 794.

Supreme Court of Alabama.

Feb. 19, 1959.

Rehearing Denied May 21, 1959.

Vincent F. Kilborn and Benjamin H. Kilborn, Mobile, for appellant.

Jas. E. Moore, Mobile, for appellees.

MERRILL, Justice.

This is an appeal from an order of the circuit court denying a petition for writ of mandamus to the Board of Revenue and Road Commissioners of Mobile County, Alabama.

The appellant, pursuant to the provisions of Tit. 22, § 88, Code 1940, filed a written application with the Board of Revenue and Road Commissioners of Mobile County requesting permission to establish a cemetery on certain described property in Mobile County. The application was referred to the Mobile County Board of Health 'for investigation from a sanitary standpoint.' The board of health submitted a favorable report to the county governing body. Thereafter, a public hearing was held and, at the conclusion, the application for permission to establish the cemetery was denied. Appellant then filed, in the Circuit Court of Mobile County, a petition for an alternative writ of mandamus requesting that the county governing body be required to issue to appellant a license to establish a cemetery on the described site upon payment of the proper fees and charges. Appellant's petition, as amended, avers that the approval of the county governing body is a mere ministerial function after the approval of the Mobile County Board of Health or, in the alternative, that the county governing body has abused its discretion and its disapproval of the application was arbitrary and capricious. A hearing was had with testimony taken orally before the trial court and the petition for writ of mandamus was denied.

The statute in question, Tit. 22, § 88, Code 1940, has not been construed by this court. It provides:

'Whenever it is proposed to locate a cemetery or to extend the boundaries of an existing cemetery, the party or parties so proposing shall make written application to the judge of probate and commissioners of the county, or to the mayor and council of an incorporated city or town, according to whether said cemetery, or extension of a cemetery, is to be located in the jurisdiction of one or the other of these authorities, describing accurately the location and boundaries of the proposed cemetery, or extension of a cemetery. Before acting upon the application, the judge of probate and commissioners of the county, or the mayor and council of an incorporated city or town, as the case may be, shall refer the application to the board of health of the county for investigation from a sanitary standpoint. In making such investigation the county board of health shall take into consideration the proximity of the proposed cemetery, or extension of a cemetery, to human habitations, the nature of the soil, the drainage of the ground, the danger of pollution of valuable springs and streams of water, and such other conditions and surroundings as would bear upon the sanitary aspect of the situation. Having completed its investigation as promptly as can be done, the county board of health shall submit a report to the judge of probate and commissioners, or to the mayor and council, as the case may be, and either approve or disapprove the application. If the latter, the board shall set forth at length its reasons for such disapproval. Having received the report from the county board of health, the judge of probate and commissioners, or the mayor and council, as the case may be, shall either grant or deny the application, giving due weight in reaching either conclusion to the views expressed by the county board of health. Should the application be granted, the judge of...