State v. Grayson

• Decision Date: 27 June 1929
• Docket Number: 1 Div. 539.
• Citation: State v. Grayson, 220 Ala. 12, 123 So. 573 (Ala. 1929)
• Parties: STATE EX REL. GARROW ET AL. v. GRAYSON, JUDGE.
• Court: Alabama Supreme Court

123 So. 573

220 Ala. 12

STATE EX REL. GARROW ET AL. v. GRAYSON, JUDGE.

1 Div. 539.

Supreme Court of Alabama

June 27, 1929

Petition of the State, on the relation of Harris W. Garrow and others for writ of prohibition to Hon. Claude A. Grayson, as Judge of the Circuit Court of Mobile County.Petition granted.

ThomasBrown, and Sayre, JJ., dissenting in part.

E. J Grove, of Mobile, for respondent.

THOMAS J.

The petition is for prohibition or other appropriate writ directed to the judge of the circuit court, seeking to have dismissed a pending cause sought to be appealed from the probate to the circuit court.

The original petition for the formation of a sea wall drainage district was presented to the judge of probate, and objections thereto are on grounds stated, and, among others, that the right of appeal from such order of dismissal did not exist, and the act under which the district was sought to be formed was unconstitutional.The opinion as rendered, or amended judgment or decree, was to the effect "that the Drainage Act of the Legislature of Alabama, approved July 21, 1927, is unconstitutional, and the petition filed in this (that) cause is dismissed."

The petition in the probate court refers to "the plat or map attached and marked Exhibit A and made a part thereof."The two documents will be considered as one pleading.Grimsley v. First Ave. Coal & Lumber Co.,217 Ala. 159, 115 So. 90.In that exhibit is the prominent designation of the primary purpose: "Proposed location of Sea Wall,""Location of proposed Sea Wall,""Mobile County Drainage DistrictNo. 1."The petition shows its dominant feature for the right of the construction or building of a sea wall in Mobile Bay and a drainage district incidental and adjacent to the construction and maintenance of the sea wall.The report of the surveyors makes this proposed improvement as that of a sea wall alongside and within Mobile Bay about 200 feet in the bay and beyond the present and normal line of the shore or bluff, and to extend alongside its western shore for a given distance of about 6 1/2 miles.Such are the initial petition, survey, report, and recommendations made and filed in the probate court.There was appointed a day for hearing objections before the notice issued, and due process was given the owners of lands to be affected by the proposed plan or improvement sought to be made on and along the western shore of Mobile Bay.

The engineers' report, among other things, contains the following:

"Such work as requested for in said petition will be conductive to the public health, safety, convenience and welfare.

"The general plan of the construction work contemplated in this preliminary engineering report is to provide an improvement that will accomplish two essential features in all drainage work; first to prevent the overflow of lands, or to prevent the erosion and subsequent overflow of land; and second to facilitate the rapid run off of water falling within the district.The description of this general plan for these two features can best be made separately.

"To prevent overflow or to prevent erosion and subsequent overflow, it is recommended that a wall of plain Portland Cement Concrete, or a wall of reinforced Portland Cement Concrete, properly supported on piles, be built beginning at a point on the Arlington Pier, approximately one-half mile east of the Western shore of Mobile Bay at mean high tide, thence westwardly and southwardly approximately parallel with the present shore line of Mobile Bay at mean high tide, to the north bank of Dog River, at its entrance to Mobile Bay and thence westwardly along the north bank of Dog River to the bridge to be built by Mobile County over Dog River on the Cedar Point Road.

"*** We have estimated that this wall will be located approximately two hundred feet east of the existing bluff line on the Bay Front Road.This will provide ample space, when filled, for the construction of appurtenances, necessary for proper protection of the wall, such as the placing of an impervious covering on the soil directly behind the wall.The total height of this wall and appurtenances, above mean low tide has been estimated as twelve feet.The total length will be approximately 36,400 linear feet.

"In the tidal marsh sections it is not contemplated improving them to such an extent as to prevent overflow.To facilitate the rapid run-off of water falling within the district, it is recommended that the existing waterways within the limits of the territory described be cleared of undergrowth, straightened, widened, and graded to a uniform slope in that portion of said waterways, where the grade of the same is above mean low tide.It is also recommended that these existing waterways be further improved in certain sections(particularly those sections that lie between the west line of the present Bay Front Road to and through the proposed wall) by the installation of pipe and reinforced concrete culverts.

"The Map hereto attached shows the territory that should be included in the district and in a general way, the location and nature of the tentative improvement proposed. ***

"It is our opinion that the improvement as outlined in this report can be constructed in a satisfactory manner, at a cost not to exceed $1,826,000.00."

The motion of an adjacent property owner to deny the prayer of the petition is on the grounds: (1) That the court was without jurisdiction to proceed and grant relief; (2)the statute under which the petition purports to be filed is violative of the Constitution; (3) the petition does not allege that lands proposed to be included in that district are subject to overflow or are too wet for cultivation or other use; (4) that movant property owner shows that lands included in the proposed district "are neither subject to overflow nor too wet for cultivation or other use"; (5) that said property owner "shows to your Honor that a drainage of so much of her lands, which are west of the Bay Shell Road, would not be a public benefit or utility, nor would the public health, convenience or welfare be promoted by draining, ditching or leveeing the same, or by changing or improving the water courses, or by the installation of tile systems, pumping plants or other things, within the terms of the Act of the Legislature, under which said petition purports to be filed."

Another property owner adds to the foregoing objections the following:

"Because the proposed improvement is primarily and predominately to consist of a sea wall of concrete of approximately 36,400 linear feet along the Western Bay Shore, with back filling and impervious covering on soil directly behind said wall and with other appurtenances to said proposed wall, and none of the statutes referred to in the petition filed in this cause cover or authorize such an improvement.

"Because the proposed improvement consists in the main, of a sea wall with appurtenances for the purpose of preventing a so called overflow and in the alternative, to prevent erosion and subsequent supposed overflow which purpose has nothing to do with drainage and the drainage feature of the plan is a minor matter, and there is no segregation of expense to the sea wall and appurtenances on the one hand, and the drainage feature on the other. ***

"Because the title to the Drainage Act of 1927, does not cover a sea wall, or sea wall and appurtenances such as is contemplated in the proposed improvement plan, and the body of said Drainage Act could not constitutionally go further or cover more than its title.

"Because the proposed sea wall and appurtenances in this proposed improvement constitute a separate and distinct and independent subject from drainage, and the said Drainage Act of 1927, could not include said wall and appurtenances, as it would be unconstitutional, in that it would contain two subjects."

The foregoing will illustrate the insistences made by many owners of adjacent property to be affected by the proposed improvements.

Upon the hearing the judgment rendered was that "said Drainage Act of 1927 is unconstitutional," and exceptions by original petitioners were noted to said decree or ruling; thereafter the judgment was more fully or formally entered as has been indicated.These orders did not adjudge costs or authorize the issue of execution therefor.The original petitioners took an alleged appeal to the circuit court on giving the required bond.There were due motions in the circuit court to dismiss the appeal on the grounds: (1) That the judgment rendered was not final and did not support an appeal; (2) that no appeal was authorized by law from such judgment of dismissal of the petition by the probate court; (3) that the circuit court was without jurisdiction to hear or determine the appeal or attempted appeal; (4) because the Drainage Act of 1927 nor the Agricultural Code of 1907 authorized a sea wall such as was proposed for construction; (5) and also upon grounds that such act, proposed improvements, and assessments therefor were offensive to the provisions of the Constitution.These motions of the relators (petitioners here) were denied and relators duly excepted; and the bill of exceptions presented and signed by said circuit judge is before us, together with the complete transcript of record and proceedings in the probate and circuit courts.

If the statute does not give the circuit court jurisdiction to review a judgment of an inferior court by appeal, any action of the circuit court on appeal will be arrested on a timely application to this court.Ex parte State ex rel. Martin, 200 Ala. 15, 75 So. 327;Ex parte State ex rel. Tillery, 217 Ala. 656, 117 So. 294;Ex parte Smith, 23 Ala. 94.

Has the circuit court...