52 So. 842 | Ala. | 1910
This appeal is from an order granting an alternative writ of mandamus to the judge of probate and members of the commissioners’ court of Russell county, commanding them to take cognizance
While we will not undertake to say that the Legislature may not, in incorporating a city, except certain territory within the boundary lines of the city, leaving the same under the control of the commissioners’ court of the county, yet it is familiar law that the city government- and the county authorities have separate and distinct functions; also, that when a certain territory is incorporated into a city the general rule is that it is for the city to determine whether the public roads in that city shall or shall not become thoroughfares in the city, and if they so determine, said public roads then
It is undoubtedly true, also, that as a general rule, when a certain territory is organized into a city, all of the land within its bounds becomes subject to the city’s control and subject to its responsibilities, and that the commissioners’ court is charged with the duty and responsibility of laying out and keeping in repair the public roads of the county, but not the streets of any city in the county.
It necessarily follows that wh'en the title of the act refers only to the incorporation of a city, no one would suppose that a provision would be made by which the county would be required to keep up the streets or any portion thereof.
While it is true that the case of State v. Miller, 158 Ala. 59, 48 South. 496, and others therein cited refer to the payment by the county authorities of a portion of the money collected by taxation to the city, yet the principle is the same when the act requires the county authorities to use a certain part of the money of the county in building and repairing the bridges in the streets of the city. It will be noticed also that said section 21, is inconsistent, in providing, first, that “all bridges, public roads and streets, within the limits of said city of Girard shall be kept in repair and in order by said city,” and afterwards including the proviso therein. If the duty rests on both the city and the county, it is difficult to see how the city could manda
The judgment of the court is reversed, and an order will be here entered, denying the writ and dismissing the petition.
Reversed and rendered.