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

• Decision Date: 06 February 1913
• Citation: 180 Ala. 489,61 So. 368
• Parties: STATE ex rel. CITY OF MOBILE v. BOARD OF REVENUE & ROAD COM'RS OF MOBILE COUNTY et al.
• Court: Alabama Supreme Court

61 So. 368

180 Ala. 489

STATE ex rel. CITY OF MOBILE v. BOARD OF REVENUE & ROAD COM'RS OF MOBILE COUNTY et al.

Supreme Court of Alabama

February 6, 1913

On Rehearing, March 18, 1913

Appeal from City Court of Mobile; O.J. Semmes, Judge.

Mandamus by the State of Alabama on relation of the City of Mobile against the Board of Revenue & Road Commissioners of Mobile County and others. From a decree sustaining demurrer to the petition, petitioner appeals. Reversed and remanded.

McClellan J., dissenting.

The petitioner alleges the fact that it is a municipal corporation, and that, in accordance with the terms of section 1, Local Acts 1907, p. 727, it became and was the duty of the board of revenue and road commissioners to keep in repair and maintain in good condition those streets and thoroughfares of the city of Mobile set out and described therein, and as contained in said section 1, which is set out in full; that the board of revenue and road commissioners have neglected and positively refused to repair, maintain and improve the streets and thoroughfares described in said section, claiming that it was not its duty to do so, as there was no law in force or effect requiring them to do so. It is further alleged that there is no adequate remedy at law to compel them to do so, except by obtaining the extraordinary writ of mandamus, which is prayed for. The respondents demurred on the ground that the statute was unconstitutional as violative of section 215, Constitution 1901, because, by the terms of the act, a discretion is vested in the board as to whether or not it will repair, maintain, and improve said streets and thoroughfares which cannot be controlled by the court, because the city of Mobile has no manner of interest in the subject-matter of the petition, full, adequate, and complete remedy at law for any wrong that may be suffered by reason of the refusal, and because mandamus will not lie, nor can the supervision be compelled or enforced by the court.

B.B Boone and Stevens, Lyons & Dean, all of Mobile, for appellant.

Sullivan & Stallworth and Gregory L. & H.T. Smith, all of Mobile, for appellees.

SAYRE J.

By an act of August 2, 1907, it was provided: "That the entire control, management and supervision of public roads in the county of Mobile, and of all streets within the city of Mobile, south of and including Virginia street," etc (describing certain outlying areas within the incorporated limits of the city of Mobile) "are hereby lodged and vested in the board of revenue and road commissioners of Mobile county and said board shall have full and complete authority to provide for the repair, maintenance and improvement of the same, and to that end may, in addition to the fund realized from the 'road tax' herein provided for, set apart and appropriate such amount from the general fund collected under authority of the law, as said board may deem necessary to carry out the provisions of this act." Acts, p. 727. The city of Mobile, averring "that said board of revenue and road commissioners of Mobile county have neglected and positively refused to repair, maintain, and improve the streets and thoroughfares of the city of Mobile described in section 1 of said local act of the Legislature of Alabama of August 2, 1907, claiming that it was not its duty so to do and that there was no law in force or effect requiring the board of revenue and road commissioners so to do," applied for the writ of mandamus to compel the board to "take charge of and to repair, maintain, and improve the streets and thoroughfares within the city of Mobile" described in the act. A demurrer, taking various grounds against the application, was sustained, and the city has appealed.

The ordinary office of the writ of mandamus is to coerce the performance of single acts of specific and imperative duty. The court will not undertake to compel the performance of a series of continuous acts, as it is impossible to furnish that superintendence without which the court's mandate becomes nugatory. It is well-settled law also that, where the duty to be performed is judicial or involves the exercise of discretion on the part of a tribunal or officer, mandamus will lie to set judgment or discretion in motion, but will not direct the manner of its exercise. The writ cannot be used for the correction of errors. "If, however, judgment or discretion is abused, and exercised in an arbitrary or capricious manner, mandamus will lie to compel a proper exercise thereof." 19 Am. & Eng.Encyc. pp. 737-739, where numerous cases are cited, including our case of White v. Decatur, 119 Ala. 476, 23 So. 999. And, "if by reason of a mistaken view of the law or otherwise there has been in fact no actual and bona fide exercise of judgment and discretion," mandamus will lie. Ib., citing Mobile Mut. Ins. Co. v. Cleveland, 76 Ala. 321, among other cases. We think the case made by the petition falls within the purview of these rules. It has been noted that the inaction of the road commissioners is based upon their conception that they are under no duty in the premises. More specifically, their opinion appears to be that there is no law in force and effect requiring them to exercise judgment and discretion in respect to the repair, maintenance, and improvement of the thoroughfares of the city of Mobile within the limits designated by the statute, and this wholly without regard to the actual condition of those thoroughfares. It is manifest, on the case presented, that the course of the commissioners has been determined by their judgment either that the act in question is not entitled to respect as being without the constitutional authority of the Legislature, or that, if constitutional, the act confers authority without imposing duty. Of course the commissioners cannot take shelter behind an erroneous interpretation of the statute; and, if their judgment in reference thereto is wrong, their nonaction--their refusal to consider the care of these streets on the specific grounds alleged in the petition--amounts to an evasion or denial of positive duty under the law. For such a situation there is no other remedy; and we are of opinion that the writ of mandamus may be awarded for the definite end and purpose of advising the commissioners of their error and at once imposing upon them the duty of exercising, under the sanction of their official oaths, judgment in respect to the repair and maintenance of the streets and thoroughfares within the designated territory. It may be that, upon such consideration, they will determine that nothing need be done at this time. If so, the prayer of the petition will have been answered, so far as it requires answer, the appropriate office of the writ performed without impairment of that just discretion lodged by law in them in respect to the manner and extent of the repairs and improvements required, and the law will have been vindicated.

We have noted the date of the act out of which this case has arisen. Eleven days later the Legislature passed "An act to provide for the organization, incorporation, government and regulation of cities and towns, and to define the rights, powers, duties, jurisdiction and authority of such cities and towns and of the officers thereof," etc. Acts 1907, pp. 790-892, which provided that all laws and parts of laws, both general and special, in conflict therewith, were thereby repealed. This act has been known as the Municipal Code Law, and went into the chapter on municipal corporations of the Code of 1907. It confers upon municipal corporations the general power "to provide for the safety, preserve the health, promote the prosperity, improve the morals, order, comfort and convenience of the inhabitants of the municipality." So far as this provision affected municipalities incorporated before the date of the act, it merely confirmed powers which all cities of consequence in this state had theretofore exercised under their local legislative charters. It recognized and continued in effect the regulations of local charter acts, in respect of streets, by providing for the distribution of power in respect to the care and maintenance of streets between the council and the board of public works in those cases where cities had such boards. Sections 1273, 1274, 1275, of the Code, taken from the act for the incorporation of cities and towns, seem to have been formulated in view of an assumed duty on the part of such corporations to care for the repair and maintenance of streets. The duty is recognized; but it is not imposed in affirmative language. The effect of these sections is to restrict liability in cases of injuries resulting from neglect, carelessness, or failure to remedy defects in streets, alleys, or public ways, and to hedge about suitors in such cases, with limitations and restrictions in addition to those obtaining in ordinary cases. Otherwise the municipal code makes no reference to the ordinary care and repair of streets. Duty and responsibility as to that are left as they were fixed by the local charter. We find in the Municipal Code Law no express provision for the repeal of the local act of August 2, 1907, nor any ground for holding that there has been a repeal by necessary implication.

In the outset, we quoted the relevant language of the act of August 2, 1907. The terms of that act as effectually divest the city of Mobile of the control, management, and supervision (by which we understand the duty of ordinary repair from time to time) of these streets as if such had been the precise form of expression employed by the Legislature. There is no indication of a purpose to confer upon the board of revenue the power of improvement by assessments of the cost against abutting property; and probably, in the present state of...