James v. Hendree's Adm'r

34 Ala. 488 | Ala. | 1859

R. W. WALKER, J.

Section 1131 of the Code provides, that “no public road can be established, changed or discontinued, except on application to the court of county commissioners.” By section 1176 it is provided, that it is a misdemeanor “ to change a public road, except by order of the court of county commissioners, * * unless it straightens the same through enclosures, or renders it more convenient for the public.” ■ There is no conflict between these two sections. The last was not intended to prescribe a second mode in which a public road could be legally changed, but simply to exempt from criminal prosecution those persons who, while changing a public road without proper authority, yet make the change in such a manner as to straighten the road through enclosures, or render it more convenient for the public. A public road, regularly established, can only be lawfully changed by order of the court of county commissioners. Hence, upon the facts stated in the plea, the original road had not, at the time the defendant’s hands were warned by the overseer to work on it, ceased to be the public road. It had not been changed in the only mode in which an authoritative change could be made; and consequently it was the duty of James to send his hands to work it, in obedience to the summons of the overseer.

[2.] The contract alleged in the plea was made to prevent his performance of a duty cast upon him by law, and in the performance of which the-State had an interest. Such a contract is clearly in contravention of public policy, and therefore void. The demurrer was properly sustained.