Moore v. Hancock

Supreme Court of Alabama

Moore v. Hancock

11 Ala. 245

CourtSupreme Court of Alabama

DecidedJanuary 15, 1847

StatusPublished

Cited by6 cases

This text of 11 Ala. 245 (Moore v. Hancock) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Moore v. Hancock, 11 Ala. 245 (Ala. 1847).

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Opinion

GOLDTHWAITE, J.

1. The statutes prescribing the course to be pursued in establishing or changing public roads, have provided no mode by which the orders of the commissioners of roads and revenue of the several counties may be reviewed, and none has yet with us been settled by decision. These are matters of public concern, in which it can rarely happen that private interest is involved beyond the value of the land over which the road passes, and it is possible it is in this connection alone that individuals have any right to reexamine the decisions of that body to which this duty is intrusted.

In Hill v. Bridges, 6 Porter, 197, we held a writ of error would not lie to revise the refusal to lay out a road; and then remarked that as the discretion is reposed in the commissioners over roads, it is difficult to perceive for what reasons it could be supposed that this or any other court is invested with power to revise their judgment. We are not aware of any decision which warrants the conclusion that the action of county commissioners can be reviewed when its subject is a public 'road; nor can we think the legislature intended to [248]*248connect this matter with the ordinary litigation. It is true, in Smith v. Com’rs of Lauderdale County, 1 Stewart, 183, this court disposed of such a cause on^the ground that the certiorari was sued for prematurely; but that was sufficient to .dispose of the case as then presented, and nothing is said by the court to induce the idea that a revision of the order would have been made under other circumstances. Orders of the commissioners in relation to ferries and private roads frequently involve the rights of individuals, and therefore stand on a different ground, yet even as to these, no special mode of revision is appointed. [Ex parte Tarleton, 2 Ala. Rep. 35; State, ex rel. v. Comm’rs of Talladega, 3 Porter, 412.]

The exercise of this juriseiction by the commissioners of the several counties being a matter of public concern, we should be disposed to doubt the right of any individual to make himself a party against those asking the action of the commissioners ; and we incline also to think that if a certio-rari can be sued out to set aside or quash an order of this public nature it can only be in the name of the State, upon the relation of some individual showing a direct proprietary interest injuriously and illegally affected by the order. [See Commonwealth v. Coombs, 2 Mass. 487.]

2. It is unnecessary, however, to make a decision to the extent of our queries, as this case can be otherwise disposed of; but what we have said is sufficient to indicate our opinion, that no one has the right to intervene in the primary court, and put. questions on the record by bills of exception. The statute authorizing bills of exception gives the privilege only to parties to a suit and in the trial of a cause — [Digest, 307, § 5] — terms which evidently do not include a- person in the condition of the actor in this certiorari. We may therefore dispense with the examination of the errors supposed to be placed on the record by that made.

3. There remains, then, only the form of the proceedings to be looked at, and these, in our judgment, are quite regular. If we concede that on a proper relation we could look at the judgment or order so far as to quash it if irregular, as seems to be the doctrine in Massachusetts. [Commonwealth v. Coombs, supra,] then here, we must infer that all the [249]*249pfce-requisites.to give jurisdiction have been complied with. The order sets out that legal notice was given of the application, and is precise in declaring what change shall be made— a jury of the proper number is appointed to view the proposed change, and this jury seems to have performed its duty in every particular — after the report of this jury, another is appointed to lay oif and mark the proposed alteration, and on the coming in of their report the final order is made. This is entirely regular, and in strict conformity to the statute. [Digest, 507, & 3, 4, 5.]

There is no error in the record. Judgment affirmed.

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GOLDTHWAITE, J.

1. The statutes prescribing the course to be pursued in establishing or changing public roads, have provided no mode by which the orders of the commissioners of roads and revenue of the several counties may be reviewed, and none has yet with us been settled by decision. These are matters of public concern, in which it can rarely happen that private interest is involved beyond the value of the land over which the road passes, and it is possible it is in this connection alone that individuals have any right to reexamine the decisions of that body to which this duty is intrusted.

In Hill v. Bridges, 6 Porter, 197, we held a writ of error would not lie to revise the refusal to lay out a road; and then remarked that as the discretion is reposed in the commissioners over roads, it is difficult to perceive for what reasons it could be supposed that this or any other court is invested with power to revise their judgment. We are not aware of any decision which warrants the conclusion that the action of county commissioners can be reviewed when its subject is a public 'road; nor can we think the legislature intended to [248]*248connect this matter with the ordinary litigation. It is true, in Smith v. Com’rs of Lauderdale County, 1 Stewart, 183, this court disposed of such a cause on^the ground that the certiorari was sued for prematurely; but that was sufficient to .dispose of the case as then presented, and nothing is said by the court to induce the idea that a revision of the order would have been made under other circumstances. Orders of the commissioners in relation to ferries and private roads frequently involve the rights of individuals, and therefore stand on a different ground, yet even as to these, no special mode of revision is appointed. [Ex parte Tarleton, 2 Ala. Rep. 35; State, ex rel. v. Comm’rs of Talladega, 3 Porter, 412.]

The exercise of this juriseiction by the commissioners of the several counties being a matter of public concern, we should be disposed to doubt the right of any individual to make himself a party against those asking the action of the commissioners ; and we incline also to think that if a certio-rari can be sued out to set aside or quash an order of this public nature it can only be in the name of the State, upon the relation of some individual showing a direct proprietary interest injuriously and illegally affected by the order. [See Commonwealth v. Coombs, 2 Mass. 487.]

2. It is unnecessary, however, to make a decision to the extent of our queries, as this case can be otherwise disposed of; but what we have said is sufficient to indicate our opinion, that no one has the right to intervene in the primary court, and put. questions on the record by bills of exception. The statute authorizing bills of exception gives the privilege only to parties to a suit and in the trial of a cause — [Digest, 307, § 5] — terms which evidently do not include a- person in the condition of the actor in this certiorari. We may therefore dispense with the examination of the errors supposed to be placed on the record by that made.

3. There remains, then, only the form of the proceedings to be looked at, and these, in our judgment, are quite regular. If we concede that on a proper relation we could look at the judgment or order so far as to quash it if irregular, as seems to be the doctrine in Massachusetts. [Commonwealth v. Coombs, supra,] then here, we must infer that all the [249]*249pfce-requisites.to give jurisdiction have been complied with. The order sets out that legal notice was given of the application, and is precise in declaring what change shall be made— a jury of the proper number is appointed to view the proposed change, and this jury seems to have performed its duty in every particular — after the report of this jury, another is appointed to lay oif and mark the proposed alteration, and on the coming in of their report the final order is made. This is entirely regular, and in strict conformity to the statute. [Digest, 507, & 3, 4, 5.]

There is no error in the record. Judgment affirmed.

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