Steele v. Madison County

• Court: Supreme Court of Alabama
• Writing for the Court: CLOPTON, J.
• Citation: 3 So. 761,83 Ala. 304
• Decision Date: 22 February 1888
• Parties: STEELE v. COUNTY COMMISSIONERS OF MADISON CO.

3 So. 761

83 Ala. 304

STEELE
v.
COUNTY COMMISSIONERS OF MADISON CO.

Supreme Court of Alabama

February 22, 1888

Appeal from circuit court, Madison county; HENRY C. SPEAKE, Judge.

This appeal arose from a petition to the circuit court to review the action of the court of county commissioners of Madison county. J. S. Steele, the appellant, petitioned the court of county commissioners of Madison county for the opening of a private road over the land of another person. Upon the hearing of the petition, and considering the case, the court of county commissioners refused to grant his petition, deciding that such action would be contrary to the constitution of the state of Alabama. Upon this refusal on the part of the court of county commissioners, the said J. S. Steele petitioned the circuit court to grant a writ of certiorari for the alleged purpose of reviewing the action of the court of county commissioners, and asking for such orders in the premises as should have been made by the said court of county commissioners. Upon a motion being made to dismiss the certiorari, on the grounds that certiorari does not lie to review a judgment or sentence of the commissioners' court, and because the circuit court had no jurisdiction to try and hear such certiorari, the circuit court dismissed the same. The petitioner excepted to this action of the court, and now assigns the same as error. [3 So. 762]

William Richardson, for appellant.

CLOPTON, J.

The material question presented by the record involves the constitutionality of sections 1676 and 1677 of Code 1876, which provide for and regulate the establishment of private roads. The right of eminent domain antedates constitutions, and is an incident of sovereignty, inherent in and belonging to every sovereign state. The only qualification of the right is that the use for which private property may be taken shall be public. Section 13 of the declaration of rights in the constitution of 1819 declared: "Nor shall any person's property be taken or applied to public use, unless just compensation be made therefor." The constitution did not assume to confer the power of eminent domain, but, recognizing its existence, limited its exercise by requiring that just compensation shall be made. Under this constitutional provision it was held that the legislature could not, with or without compensation, take private property for private use; that a private road was a private use; and that sections 1187 and 1188 of Code 1852, which correspond with sections 1676 and 1677 of Code 1876, were unconstitutional, so far as they undertook to confer authority to establish such road over the lands of another without his consent. Sadler v. Langham, 34 Ala. 311. An amended or revised state constitution should be interpreted in the light of its predecessors, and when new provisions are introduced they should be given a fair and legitimate meaning, and so construed, having regard to their nature and purposes, as to accomplish the objects intended. In forming the constitution of...