Matkin v. Marengo County

137 Ala. 155 | Ala. | 1902

DOWDELL, J.

The present appeal is prosecuted from the decree, of the chancellor dissolving- the temporary injunction theretofore granted in the case, and the rendition of this decree constitutes the only assignment of error on the record. The two principal questions, and indeed- the vital questions, involved in the controversy, and urged in argument by counsel, are, first, whether the court of county commissioners have the .power to remove or change the court house, from one lot to- another and different lot within the. limits of the territorial area designated by law and constituting the county seat, without, first having submitted the question to the vote of the people, under section 41 of the Constitution. Second, whether the orders of the court which were made in the case in reference to the removal of the court house, were made at a time and term when it had a right to exorcise the power, supposing the power to be in the court.

By an act of the general assembly approved February 8, 1871, it was provided,, among other things, “that the •court house of Marengo- county be, and the same is hereby, removed from Demopolis to Linden, in said county, and that the same be permanently located at Linden, in said county;” and it was also provided in said act for the removal of the records, and furniture belonging to the county offices within a specified time. By this act the town of Linden became the court house site, or the county seat of government for the county of Marengo. No particular lot upon which to erect the court house building and other public buildings for county purposes, was designated. This was left to Hie court of county commissioners, whose duty it was under the general statutes to erect such buildings, and the exercise of their powers in the location, of such buildings was only limited to the territorial boundary of the town of Linden, as it existed at the time of the passage of the act of removal. The same: general statutes which then existed, investing the court, of county commissioners with the power, and imposing upon that court the duty, of erecting a new court house and jail, remain the law today, unaffected by any constitutional provision, in so far as the power and duty of building such new court house and jail is concerned, whenever by them deemed necessary. — §§ 1405-1409 of Code of 1896.

There is a limitation put by the Constitution upon the poAvers of the commissioners’ court, in the matter of the levy of a special tax for such purposes (section 215 of the Constitution), and also, a limitation in the matter of the issuance of bonds. — § 222 of the Constitution. But as sliOAvn by the’ bill and the denials of the SAVorn ansAA'er, in neither of these respects has there been any violation by the court, of county commissioners of the < •onstitutional provisions.

‘his a general rule in all cases involving the location, erection, repairs, removal, or furnishing of county buildings, such as court houses, jails and public offices, the court of county commissioners exercise a discretion which can not be controlled by any judicial tribunal, in the.absence of fraud, corruption or unfair dealing.” — 7 Am. & Eng. Eney. Luav (2d edi), 996, and authorities there cited. Under our statutes, there can be no doubt of the proposition, that, the court of county commissioners has sole and exclusive power and authority, in the matter of determining the necessity for a new court house for the county and having the same erected, and that in these, matters they act in, at least,, a quasi legislative capacity, and their acts, Avhen free from fraud, corruption,: or unfair dealing/ 'cannot be controlled • or questioned’ by any other court. — Vide, §§ 1405-1409, Code, 1896; Hayes v. Ahlrick et al., 115 Ala. 239. See also'the following cases construing the court’s powers and discretion in niatters’ of public roads, and in which the principles declared seem applicable here": Commissioners v. Hearne, 59 Ala. 37; Hill v. Bridges, 6 Port. 197; Moore v. Hancock, 11 Ala. 245; Parnell v. Commissioners, 34 Ala. 278; Commissioners V. Bowie, 34 Ala. 461; Askew v. Hale, 54 Ala. 638.

Coming to the question 'first stated above/ as to the power'of the court of county commissioners-to: remove the court house from the present 'site or lot in the town of Linden- to another and different site or lot within the territorial limits of said town as they existed at the time of the permanent location of the court houses in the town of Linden by the act of February 8th, 1871, we think'it may be asserted, that no one would question the power and authority of the court of commissioners, in'the event of a change of the seat of government in a particular county, from one town,' municipality, oír district to am other in such county, under the provisions of section 41 of the Constitution, to' select the particular site or lot for the erection of the public buildings thereon, within tlie territorial limits of the town, municipality or district, to which the removal was made, and this without any submission of such selection toa vote’of the people. Section 41 of the Constitution reads as follows: ’’ “Nb court house'or county site shall be removed except by a majority vote of the qualified electors óf Said county voting at an election- held for such purpose, and when an election has been once held no other election- shall be held for such purpose until -the expiration of' four years,” etc. The terms court house sité and county site.(in their ordinary use' mean the same thing, and are falten and understood to signify the seat of government' of the county, and in this sense cannot be restricted and corn-fined to the particular lot, or the ground by 'measure1 meht, upon which the necessary public buildings1 áte erected. We :said on the former appeal in this case, Marengo County et al. v. Matkin et al., 134 Ala. 275, 32 So. Rep. 069: “It has been deciaíréd ás a. general principie that, twhen.a city or towrn is selected as .the county seat, the boundaries, of such ..city. or town, as1-they then exist, become-.the boundaries ..of .the county seat,’”, etc. The principle is. the same, whether it be. the county seat or site, or ¡the court house site, although the.latter be -a court house located in a town ,or city,, other than the county seat, as isi often done for the convenience of the people.

We judicially know that in a number of the counties of this State, besides the court house at the county seat, there are court houses for the holding of the circuit and chancery courts located in other towns or cites within the county. A knowledge of the existence of these conditions is sufficient to account for and explain the particularity of the. framers. of the Constitution in the language employed in sectioh 41, that' “nó court house or county site,” etc. The construction contended for by counsel for appellants, that “court house” site should be held to- mean the particular lot upon which the building is erected, is- too narrow7' and unsupported by sound reason, and if adopted, would likely lead to greater public detriment in possible cases, than mere inconvenience.

Our conclusion is, -and Ave so decide, that it Avas, and is, intended by section 41, that no court house shall be removed from the town or city, where located at the time of the adoption of the Constitution, -except as provided in said' section, and not, that a new court house may not be erected within .such. town or city on a lot other than that upon Avhich the old is located, whenever determined necessary by the court of county commissioners, Avithout first having submitted such question to a vote of the people.

Nothing appears from the record to the contrary, but that the orders of the court of commissioners relative to the building of the new court house w^ere properly made at an adjourned term of the court on the 9th day of July from, the regular May term of said court. The fact that the June term of the court, as prescribed by section 3978 of the Code, intervened between the regular May term, and the adjourned term of July 9th, did not interrupt the continuance of the regular May term to this later date. The June term provided for in sections 3977, 3978, while in one sense, is a regular term, and so denominated by the statute, still is limited by the statute-to the transaction of business relating solely to taxation, and is in no sense a regular term of the court for the transaction of business generally. Tt woul.1 not. for a moment be contended, if the orders in the present case had been made at such June term, that they would have been valid.

We find no error in the record, and the decree of the chancellor will he affirmed.