Benedict v. Board of Revenue & Road Commissioners of Mobile County

58 So. 306 | Ala. | 1912

MAYFIELD, J.

This is a common-law certiorari proceeding, and seeks to quash an order or judgment of the board of revenue, etc., for Mobile county, establishing a certain stock law district in such county.

The specific objection most strongly urged against the validity of the order or judgment complained of is that the initial petition filed in or with said board, by which the jurisdiction of the board attached, if at all, did not affirmatively show, on its face, that it contained the names of five freeholders residing within the district actually established, as is required by the statute (Acts 1900-01, p. 2019) under which the proceedings were had. This statute expressly authorized the establishing of the whole, or of a part of the territory described in the petition, as a stock law district. It is not denied that a petition was filed, nor that it contained the names of five or more freeholders residing within the proposed district; but it is claimed that the proposed district, as a whole, was not established, but that only a part of the proposed territory was established or declared to be a “stock law district,” and that the petition did not show that the signers resided within the territory actually established, but showed only that they resided in that proposed. In other words, that only a part of the territory described in the petition was established as a “stock law district;” and hence that it does not appear from the record that the petitioners resided in the district so established.

A sufficient answer to this proposition on certiorari is that it does not affirmatively appear from the record that the petitioners did not reside within the district so created. The origin, office, and character of the writ, and the questions which can be considered or reviewed by such common-law certiorari, have been repeatedly declared by this court. “A certiorari at common law was an original writ, issuing out of Chancery, or the King’s Bench, directed in the King’s name, to the judges or officers of inferior courts, commanding them to return the record of a cause depending before them, to the end the party may have the more sure and speedy justice before him, or such other justice as he shall assign to determine the cause.—2 Bac. Abr. 162. In its nature it was a revisory remedy, intended only for the correction of errors of law, apparent on the record.”—Dean v. State, 63 Ala. 154. “The appropriate office of the writ is to correct errors of law apparent on the face of the record. Conclusions of fact cannot be reviewed unless specially authorized by the statute. The trial is not de novo, but on the record; and the only matter to be determined is the quashing or the affirmation of the proceedings brought up for review.”—Town of Camden v. Bloch, 65 Ala. 239. To authorize us to quash the proceedings in the probate court, the invalidity must appear from or by an inspection of the record itself. It must proclaim its own invalidity, or it must fail to show that the court acquired jurisdiction to render the judgment or order complained of. No such invalidity appears in this case. The statute seems to have been complied with. The original petition contained all the statutory requisites to confer jurisdiction, and the court proceeded ivith the hearing after due and proper notice; and the mere fact that the entire territory described in the petition was not embraced in the order establishing the stock law district did not render the proceeding void on its face or subject to be quashed on certiorari.—Mayfield v. Tuscaloosa County, 148 Ala. 548, 41 South. 932; Cushman v. Blount County, 160 Ala. 227, 49 South. 311.

This, is certainly true since the powers of commissioners’ courts have been enlarged and extended by section 3312 of the Code of 1907, which reads as follows: “The court possesses original and unlimited jurisdiction in relation to the establishment, change, or discontinuance of roads, bridges, causeways, ferries, and stock law districts within the county, except where otherwise provided by law, to be exercised in conformity with the provisions of this Code.”

We cannot agree with counsel that the Legislature has not the power to authorize commissioners’ courts to establish or to abolish stock law districts. It is not, we think, an unwarranted delegation of legislative power, and we know of no inhibition in the Constitution against the Legislature’s conferring the power and jurisdiction upon the commissioners’ courts. The mere fact that the Constitution of 1901, § 101, prohibits the Legislature from passing local laws upon the subject of creating stock law districts, does not prevent it from passing general laws upon that subject, but makes it all the more necessary that general laws should be passed; and the Legislature has seen fit in its wisdom, to authorize commissioners’ courts to create and to abolish such districts. And we are unable to see any constitutional or other valid reason why they could not or should not act accordingly.

No error appearing in the record, the judgment of the law and equity court, refusing to quash the proceedings in the commissioners’ court, is hereby affirmed.

Affirmed.

All the Justices concur.