St. Clair County v. Town of Riverside

• Citation: 128 So.2d 333,272 Ala. 294
• Decision Date: 25 May 1961
• Docket Number: 7 Div. 507
• Parties: ST. CLAIR COUNTY and State Highway Department v. TOWN OF RIVERSIDE.
• Court: Supreme Court of Alabama

Page 333

128 So.2d 333

272 Ala. 294

ST. CLAIR COUNTY and State Highway Department v. TOWN OF RIVERSIDE.

7 Div. 507.

Supreme Court of Alabama.

May 25, 1961.

Starnes & Holladay, Pell City, for appellants.

Frank B. Embry, Pell City, for appellee.

SIMPSON, Justice.

The Town of Riverside (appellee) filed in the Circuit Court, In Equity, of St. Clair County, a bill, which as last amended, sought an injunction and a mandatory order against appellant, Honorable Sam Engelhardt, as Highway Director of the State of Alabama. The bill alleged that 'the highway from Pell City to and through Riverside, known as Bankhead Highway No. 78, has been a public way and Street and Highway, within the corporate limits of the Town of Riverside for more than thirty years used by the general public.' The bill alleges that respondent 'erected signs along said Street and Hiway' closing it and diverting traffic away from the use of said way, Street or Highway without notice to or knowledge of complainant. The bill prays that respondent be required to remove the signs and all obstructions from the highway and to cease and desist from obstructing Highway 78. This bill was amended on February 15, 1960 by having it sworn to and by asking for a temporary writ of injunction.

The road in question was formerly designated 'old Bankhead 78', which ran through the Town of Riverside. Bankhead 78 was rerouted to the south some twenty-five years ago. The old route along with another paved road were used to connect Riverside with the relocated Highway 78. The Highway Department in the construction of Interstate I-20, a limited access facility, erected barriers and closed old Bankhead 78 at a point near the northern right of way line of the new interstate facility. The other paved road from Riverside Road to the 'new U. S. 78' was not interrupted. Appellant states that the closing of 'old 78' was in accordance with the approved plans of the State Highway Department and of the U. S. Bureau of Public Roads.

The trial court granted the temporary injunction as prayed for. The basis of the court's findings was that the closed road which had served the inhabitants of the town for many years was a more convenient route of travel for the people of the town and some other parts of St. Clair County. Of consequence of which it ordered the appellant to open up the road and remove the obstructions and that 'irreparable injury will be done to the complainant if a writ of injunction is not granted'. It is to be noted that there are no claims and no findings of the court that in constructing the highway through the village the appellant acted beyond his authority or arbitarily, capriciously, or fraudulently in blocking said road.

Questions Posed by This Appeal:

1. Is an injunctive action properly maintained against the Highway Director of the State of Alabama in his official capacity?

2. (a) Does the State of Alabama, acting through the State Highway Department, have the authority to close an existing street or highway at a point where the existing highway intersects an interstate limited access facility?

(b) Does the Highway Department of the State of Alabama have the legal authority under Act 104, General Acts of Alabama 1956, page 148, to close one of the two highways leading into and through a municipality?

(c) Does the State of Alabama Highway Department have the legal authority under Act 104, supra, to close or vacate a highway which is also utilized as a city street?

1. Injunctive action may be maintained against a state official, if the official is acting beyond the scope of his authority or acting illegally, in bad faith, or fraudulently. A state's immunity from suit does not apply when 'officers under a mistaken interpretation of the law acting in the name of the State commit acts not within their authority which are injurious to the rights of others.' Curry v. Woodstock Slag Corp., 1942, 242 Ala. 379, 6 So.2d 479, 480. Glass v. Prudential Insurance Co. of America, 246 Ala. 579, 22 So.2d 13; Horn v. Dunn Brothers, Inc., 262 Ala. 404, 79 So.2d 11; Finnell v. Pitts, 222 Ala. 290, 132 So. 2. In 49 Am.Jur., States, Territories, and Dependencies, pp. 308-310, the following observation is pertinent:

'Nor does the immunity of the state from suit relieve an officer of the state from responsibility when he acts tortiously on the rights of an individual, or in excess or violation of his authority, even though he acts or assumes to act under the authority and pursuant to the directions of the state. * * * An officer who acts illegally is not acting as an officer, but stands in the same light as any other trespasser.'

It seems, therefore, that the ultimate question is whether the bill alleges, and the proof shows, conduct which is beyond the scope of the Highway Director's authority, or is arbitrary.

2. (a) Does the State of Alabama acting through the State Highway Department have the authority to close an existing street or highway at a point where the existing highway intersects an interstate limited access facility?

General Authority.

The Constitution of Alabama 1901 (Amendment 11, Article 20, Amendment 21, Article 20A) gives the Highway Department the authority to engage in the construction, improvement, repair and maintenance of public streets, highways and bridges in the State of Alabama. Scott v. Alabama State Bridge Corp., 233 Ala. 12, 169 So. 273; In Re Opinion of the Justices, 225 Ala. 460, 143 So. 900.

Title 23, § 3, Code of Alabama 1940 gives the Highway Department authority to make contracts or agreements to construct and maintain roads in the State which are in municipalities and serve as roads of connection in the state highway system.

Therefore, the Highway Department has authority to construct and maintain city streets if they are roads of connection within the state Highway system.

In Pruett v. Las Vegas, 261 Ala. 557, 74 So.2d 807, 810 this Court thus construed the authority of the Highway Director in locating highways:

'The matter of locating, constructing and maintaining highways is not a function of the courts. In that matter the highway director exercises an administrative and quasi-legislative function which, when free from fraud or corruption, cannot be reviewed by the courts.'

In its original brief appellee points out that the 'rights of the citizens and those doing business in the Town of Riverside are involved and not some single individual.' In this regard the Court in the Las Vegas case, supra, had this to say:

'No citizen or taxpayer, as such, has or can acquire any vested property right in a state highway which deprives the Highway Director of the power conferred by statute to construct roads and bridges. * * * Private inducements or considerations cannot rightly enter into the question as to whether a highway should be constructed. The controlling factor must always be the good of the general public and not the convenience or financial gain of the people who live along any particular way.' (Emphasis Supplied.)

We do not think the effect of the above statement different when a group of citizens or taxpayers bring the action. The interest of the general public would continue to control.

In 25 Am.Jur., Highways, § 118, page 415 the following observation is made:

'Except as restricted by the Constitution, the state's power is plenary in respect to the vacation of streets and highways within its borders. Such power may be exercised directly by the legislature, or may be delegated by it to subordinate governmental agencies.' And in 18 Am.Jur., Eminent Domain, § 83, Pocket Supplement, page 93:

'The broad power of the state to take property of one of its political subdivisions or other agencies in the absence of the constitutional restrictions, has rarely been questioned. And there appears to be no dissent from the proposition that, subject to constitutional restrictions, a state legislature has the general power to authorize or, on the other hand, forbid one of the political subdivisions or other agencies of the state to take, either by formal condemnation proceedings or otherwise the property of another subdivision or agency.'

In 39 C.J.S. Highways § 97, the following appears: 'In the exercise of the police power, the state may change or alter public highways.' In Alabama Great Southern Railway v. Denton, 239 Ala. 301, 195 So. 218, it was held that the State has plenary power to relocate highways.

And in 40 C.J.S. Highways § 179: 'Where authority is conferred on the state highway officers to designate, locate, and alter roads of the * * * highway system, they may do so without consent of the local authorities.'

2. (b) Does the authority to vacate, locate and construct highways extend to the blocking off of a city street?

Alabama Act 104.

Act 104, General Acts of Alabama 1956, page 148, approved February 9, 1956, was taken almost verbatim from the 'Model Controlled-Access Highway Act'. The Model Act has also been adopted either in whole or in part by some nineteen other states (Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Montana, North Dakota, South Carolina, South Dakota, Tennessee, Utah, Vermont, Washington, West Virginia, and Wyoming). Highway Research Bound Special Report 26; Expressway Law, pp. 69-75. The Declaration of Policy in the Model Act reads as follows:

'Sec. 1. Declaration of policy. The legislature hereby finds, determines and declares that this act is necessary for the immediate preservation of the public peace, health, and safety, and for the promotion of the general welfare.' The Declaration of Policy in the Alabama Act 104 reads as follows:

'Section 1. It is the declared policy of this State to facilitate the flow of traffic and promote public safety by controlling access to highways included in the National System of Interstate Highways as selected by joint action of the Alabama State Highway Department and the United States Bureau of Public...