Keenan v. Comm'rs' Court of Dallas Co.

26 Ala. 568 | Ala. | 1855

RICE, J.

—Summary proceedings in the Court of County Commissioners, under the Code, to take away a man’s land against his will, for the purpose of establishing a new public road, cannot be sustained, when assailed on certiorari.' unless the record of the proceedings shows that the court had jurisdiction, and that the jurisdiction has been exercised in the mode prescribed by the Code.—Rex v. Croke, 1 Cowper’s Rep. 26; 3 Phillips on Ev. 987; Caskey v. The State, 6 Ala. Rep. 193; Cloud v. Barton, 14 Ala. R. 341.

The mode of proceeding in such cases is prescribed by sections 1132,1133, 1134 and 1135 of the Code. Section 1134 prescribes the form of the oath the viewers must take before they act. And therefore we must apply to this cas^ the following well established principle, to-wit, that where a particular form of oath is prescribed, by a statute conferring a special authority, like the statute now under consideration, it must be fully set out and precisely pursued : a recital or allegation that the'persons for whom the oath was prescribed by the statute, were “duly sworn before acting,” is the recital of an opinion, or conclusion, and not of &fad, and is not sufficient.— Rex v. Croke, supra; Molett v. Keenan, 22 Ala. R. 484; Caskey v. The State, 6 Ala. R. 193; Leigh v. The Bank, 10 Ala. R. 339; Pl. & Mer. Bank v. The State, 12 Ala. R. 757; Duncan v. Bank, 4 Porter’s R. 181.

Conceding that the Court of County Commissioners had juiisdiction in this case, it was essential to the regularity of the proceedings, that the viewers should have viewed and marked out the road described in the order, “ to the greatest advantage to the public, and with as little prejudice to individuals as possibly ana without partiality or favor —and that the record should show that the. road had been thus viewed and marked out. The record does not show, in any manner, that the rc^ad was viewed and marked out “ to the greatest advantage to the public, and with as little prejudice to individuals as possible.” It does not appear that the viewers took the oath prescribed by section 1134 of the Code, nor that the duties which that oath would have imposed on them, if they had taken it, have been performed. Their report shows, that being “ duly sworn before acting,” they performed without partiality or favor the duty assigned them in the order for the proposed road ; but their report does not show that of the court, to-wit, viewed and marked out “ the best route” they performed the duties which the prescribed oath would have imposed upon them, if they had taken it.

Although we might well hold that this proceeding could not be collaterally impeached for such irregularity as above pointed out, we cannot sustain it when assailed on certiorari, without disregarding the Code and the well settled principles which govern all such summary proceedings, when the form of proceeding is prescribed by the statute. The case of Long v. The Comm’rs Court, 18 Ala. R. 482, was decided under asta-tute which did not prescribe the form of the oath nor of the proceedings. The irregularity above referred to must be regarded as fatal, when presented (as it is here) on certiorari.

The judgment of the Circuit Court is reversed, and judgment must be here rendered, quashing the proceedings of the Court of County Commissioners of Dallas county, set forth in the record ; and the appellant must recover of the appellee the costs of this court and of the court below.