Steele v. Madison County

Decision Date22 February 1888
Citation3 So. 761,83 Ala. 304
PartiesSTEELE v. COUNTY COMMISSIONERS OF MADISON CO.
CourtAlabama Supreme Court

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.

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 1861, the declaration of the constitution of 1819 above quoted was retained, and a new and additional provision was introduced, which is as follows: "Private property shall not be taken for private use, or for the use of corporations other than municipal corporations, without the consent of the owner; but the right of way may be secured by law to persons and corporations over the land of persons and corporations; also the right to establish depots, stations, and turnouts to works of public improvement: provided, just compensation be made to the owner of such land." Const. art. 3, § 30. It is manifest there was a purpose in the introduction of this new provision, which may be discovered from its nature, the circumstances under which it was introduced, and the cause thereof. These provisions were cojoined, and substantially incorporated in the constitutions of 1865 and 1868 as section 25 of the declaration of rights; the only material alteration being that compensation shall be made before the taking. The makers of the present constitution deemed it necessary and proper to change in some respects the provisions in the constitutions next preceding, and framed section 24 of the declaration of rights so as to read as follows: "That the exercise of the right of eminent domain shall never be abridged, nor so construed as to prevent the general assembly from taking the property and franchises of incorporated companies and subjecting them to public use, the same as individuals. But...

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20 cases
  • State v. Grayson
    • United States
    • Alabama Supreme Court
    • June 27, 1929
    ... ... Claude A. Grayson, as Judge ... of the Circuit Court of Mobile County. Petition granted ... Thomas, ... Brown, and Sayre, JJ., dissenting in part ... [123 ... constitutional authority, certiorari was held to be the ... remedy, Steele v. County Com'rs, 83 Ala. 304, ... 308, 3 So. 761; Davis v. McColloch, 191 Ala. 520, 67 ... ...
  • Beeland Wholesale Co. v. Kaufman, 3 Div. 198
    • United States
    • Alabama Supreme Court
    • March 18, 1937
    ... ... Withdrawn June 1, 1937 ... Appeal ... from Circuit Court, Montgomery County; Walter B. Jones, ... Bill by ... Beeland Wholesale Company against Jacob L. Kaufman, as ... excess of the just share of the citizen to the expense of ... government. Steele v. County Commissioners, 83 Ala ... 304, 3 So. 761 ... The ... contributions here in ... ...
  • Town of Gurley v. M&N Materials, Inc.
    • United States
    • Alabama Supreme Court
    • December 6, 2014
    ...Section 23 merely places certain limits on the exercise of the power of eminent domain. This Court stated in Steele v. County Commissioners, 83 Ala. 304, 305, 3 So. 761, 762 (1887): “ ‘The right of eminent domain antedates constitutions, and is an incident of sovereignty, inherent in, and b......
  • Johnston v. Alabama Public Service Commission
    • United States
    • Alabama Supreme Court
    • June 30, 1971
    ...antedates constitutions, and is an incident of sovereignty, inherent in and belonging to every sovereign state. Steele v. County Commissioners, 83 Ala. 304, 3 So. 761; Denson v. Alabama Polytechnic Institute, 220 Ala. 433, 126 So. 133; Gerson v. Howard, 246 Ala. 567, 21 So.2d 693; Blanton v......
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