Kirby v. Court of Com'rs of Marshall County

• Decision Date: 23 April 1914
• Docket Number: 729
• Citation: Kirby v. Court of Com'rs of Marshall County, 65 So. 163, 186 Ala. 611 (Ala. 1914)
• Parties: KIRBY v. COURT OF COM'RS OF MARSHALL COUNTY.
• Court: Alabama Supreme Court

65 So. 163

186 Ala. 611

KIRBY v. COURT OF COM'RS OF MARSHALL COUNTY.

No. 729

Supreme Court of Alabama

April 23, 1914

Appeal from Circuit Court, Marshall County; W.W. Haralson, Judge.

Certiorari by Letitia Kirby against the Court of County Commissioners of Marshall County to quash proceedings establishing a public road.From a judgment dismissing the petition, the plaintiff appeals.Affirmed.

John A Lusk & Son, of Guntersville, for appellant.

Street & Isbell of Guntersville, for appellee.

MAYFIELD J.

This is common-law certiorari to quash proceedings in the commissioners' court of Marshall county establishing a public road in that county.The circuit court denied and dismissed the petition for certiorari, and declined to quash the proceedings in the commissioners' court.From the judgment dismissing the petition for certiorari, appellant prosecutes this appeal.

It has been ruled by this court repeatedly that the supervisory power of a superior over an inferior legal tribunal, by means of a common-law writ of certiorari, extends only to questions touching the jurisdiction of the subordinate tribunal and the regularity of its proceedings.The appropriate office of the writ is to correct errors of law apparent on the face of the record.Conclusions of fact cannot be reviewed, unless specially authorized by statute.The trial is not de novo but on the record; and the only matter to be determined is the quashing or the affirmation of the proceedings brought up for review.Town of Camden v. Bloch,65 Ala. 236;McAllilley v. Horton,75 Ala. 491.

Prior to the Code of 1907 it has been uniformly ruled that "the commissioners' court of roads and revenue is a court of special, limited jurisdiction, and its proceedings to be valid, must show upon their face affirmatively that the court has acquired jurisdiction of the subject-matter by taking those preliminary steps directed by the statute, in cases providing for its action.This was the doctrine held in the case of Commissioners of RoadsandRevenue of Talladega County v. Thompson,15 Ala. 134; and the same doctrine was reasserted at the present term of this court in the case of Lamar v. Commissioners of Roads and Revenue of Marshall County, 21 Ala. 772."Molett v Keenan,22 Ala. 487.

We are of the opinion, however, that it was the purpose of the Legislature to change this rule of law announced in the above cases, and, to the extent of establishing roads, stock law districts, etc., to make the court of county commissioners a court of original and unlimited jurisdiction, instead of one of special and limited jurisdiction.In fact, the statutes so declare.

Section 3312 of the Code reads as follows: "The court[commissioners'] possesses original and unlimited jurisdiction in relation to the establishment, change, or discontinuance of roads, bridges, causeways, ferries, and stock law districts within the county, except where otherwise provided by law, to be exercised in conformity with the provisions of this Code."

Section 5765 of the Code provides as follows: "The courts of county commissioners of the several counties are invested with a general superintendence of the public roads within their respective counties, and may establish new, and change and discontinue old, roads, in the manner hereinafter provided and shall improve and maintain the public roads, bridges, and ferries of their respective counties so as to render travel over the same as safe and convenient as practicable.To this end, they are given legislative, judicial, and executive powers; they may establish, promulgate, and enforce new rules, regulations, and laws not inconsistent with the general and special laws of this state which are necessary to make,...