Mobile & Girard R. R. v. Commissioners Court of Pike Co.

97 Ala. 105 | Ala. | 1892

McCLELLAN, J.

— The act conferring on the Criminal Court of Pike county, the “authority to grant..... writs of certiorari, mandamus and supersedeas, and - all other remedial writs which are granted by judges at common law” is not open to the constitutional objection that its subject matter is not expressed in its title. The title of the act, so far as it need be stated here, is “to amend section 23 of an act to establish a Criminal Court for the county of Pike with criminal jurisdiction in misdemeanor cases” &c. This section 23 in the original act related to, provided for and prescribed the jurisdiction of the court. The act under consideration amending this section also relates to, provides for and prescribes that jurisdiction, and extends the same to the grant of writs of certiorari, mandamus and supersedeas. The subject of the section is jurisdiction. The reference in the title of the amendatory act to the number of the section is a sufficient expression in the title of this act to cover any provision relating, as the one in question does, to the jurisdiction of the court. — Ex parte Cowert, 92 Ala. 94.

This is an appeal from an order of said Criminal Court awarding a mandamus to compel .the Mobile & Girard B. B. Co. to place certain public roads, at points were it is alleged that company had built a railway across them, in a condition satisfactory to the Commissioner’s Court of Pike county, as required by section 1581 of the Code. The rule nisi was served on certain civil engineers who had charge of the construction of the railway. They appeared and alleged in their answer that they were not the agents of the Mobile & Girard B. B. Co., but were in the employment either of the Central Bailroad & Banking Company oi Georgia which had possession and control of the Mobile & Girard Bail-way, and was building this extension thereof under a lease for ninety-nine years, or of the Bichmond & Danville B. B. Co., wbicb had leased all tbe lines owned or controlled by tbe Georgia Company. Tbe answer was demurred to and tbe following among other grounds of demurrer were assigned: 2nd. That the answer was insufficient to raise tbe question as to who were necessary parties respondent to tbe getition, because it was not sworn to. 3rd. That tbe Central jailroad & Banking Company, and tbe Richmond & Danville R. R. Co., were not necessary parties, and 4th. That tbe Mobile & Girard R. R. Co., was tbe only necessary party. Tbe third and fourth, grounds of demurrer were sustained. No action was bad on the second assignment and we are to presume that it was waived. Tbe record shows that issue was taken on tbe answer, and this involved an affirmation on tbe part of petitioner that tbe persons served were tbe agents of tbe corporation proceeded against. No evidence whatever was adduced to show tbe fact of such agency and it being with tbe petitioner to discharge tbe burden in that connection, tbe petition should have' been denied because it did not appear that tbe party whose action was sought to be controlled by mandamus was before tbe court. This error will necessitate a reversal of tbe order below, and a remandment of tbe cause. Moreover, we are of tbe opinion that tbe corporation wbicb was building tbe road and bad tbe control and possession of it, as also perhaps tbe corporation owning the road, should have been brought before the court.

Tbe duty prescribed by section 1581 of tbe Code is a corporate duty, and it can not be coerced, except on a proceeding against tbe corporation itself.— Winter v. Baldwin, 89 Ala. 486.

Reversed and remanded.