State v. Board of Revenue of Jefferson County

• Decision Date: 18 April 1918
• Docket Number: 6 Div. 711
• Citation: 78 So. 964,201 Ala. 568
• Parties: STATE ex rel. CITY OF BIRMINGHAM v. BOARD OF REVENUE OF JEFFERSON COUNTY.
• Court: Alabama Supreme Court

78 So. 964

201 Ala. 568

STATE ex rel. CITY OF BIRMINGHAM v. BOARD OF REVENUE OF JEFFERSON COUNTY.

6 Div. 711

Supreme Court of Alabama

April 18, 1918

Appeal from Circuit Court, Jefferson County; H.A. Sharpe, Judge.

Petition by the State of Alabama, on the relation of the City of Birmingham, for mandamus against the Board of Revenue of Jefferson County. Demurrer to the petition sustained and the application dismissed, and petitioner appeals. Affirmed.

M.M Ullman and W.A. Jenkins, both of Birmingham, for appellant.

W.K Terry, of Birmingham, for appellee.

THOMAS J.

The mandamus prayed was to compel the board of revenue of Jefferson county to maintain certain highways in the city of Birmingham, between the curb line and the property line on each side of said highways. Demurrer was sustained to the petition, and, petitioner declining to plead further, the application was dismissed.

Exercise of the statutory discretion lodged with boards of revenue and courts of county commissioners, and the members thereof, may be compelled by mandamus. State ex rel. City of Mobile v. Board of Revenue, 180 Ala. 489, 61 So. 368. The court will not, however, direct the manner of the exercise of such discretion. Lovelady v. Copeland, 73 So. 948; Mobile County v. State ex rel. Campbell, 163 Ala. 441, 50 So. 972.

A construction of the statute in question substantively may not be without some difficulty. For example, the Municipal Code provides the right of a municipality to improve and maintain its public streets and sidewalks, and to make assessments for such improvements against the properties of abutting owners in the cases specifically provided by statute, whereas, no such power is given the county. In proper cases, the municipality is subject to damages for injuries caused by improper and negligent construction and maintenance where the county would not be so subject. It is unnecessary to prolong the discussion of the rights and liabilities of municipalities, as distinguished from those of counties, in the premises, other than to advert to such matters well known to the Legislature when the act in question was passed.

To ascertain the purpose or intent of an act, a court may, when necessary, consider the origin, the contemporaneous history and the prior condition of the law, as well as the general powers and the course of legislation. 2 Lewis' Sutherland, Stat.Const. (2d Ed.) § 471.

It is a matter of common knowledge that public streets and the sidewalks adjacent thereto in the larger municipalities are generally materially different in construction and very differently maintained from the public highways without the corporate confines--those usually constructed and maintained by the county. Smitha v. Flournoy, 47 Ala. 345, 361; Watson v. State, 55 Ala. 158; City Council v. Wright, 72 Ala. 411, 47 Am.Rep. 422; Wall v. State, 78 Ala. 417. And courts are said to know what everybody else is presumed to know; and what is thus known juries are permitted to find out, without specific proof being adduced in its support. Rector v. State, 11 Ala.App. 333, 66 So. 857; Gulf, Colo. & S.F. Ry. Co. v. State of Texas, 72 Tex. 404, 10 S.W. 81, 1 L.R.A. 849, 13 Am.St.Rep. 815; Trenier v. Stewart, 55 Ala. 458; Walker v. Allen. 72 Ala. 456. Such fact was of legislative cognizance when the act of March 17, 1915, "To provide for building and maintaining public highways through incorporated towns and cities by boards of revenue and courts of county commissioners in all counties of two hundred thousand inhabitants, or more, out of any money at any time subject to the disposal of such boards of revenue and courts of county commissioners for road purposes," was adopted. Gen.Acts 1915, p. 106.

The dominant purpose of this act, no doubt, was, as stated in its title, to provide for the building and maintaining of public highways through incorporated towns and cities by boards of revenue, rather than to provide for the building and maintaining of certain public highways within such municipalities. That is to say,...