This is an appeal from a decree of the circuit court of Pickens County sustaining respondents' (appellees') demurrer to complainants' (appellants') bill of complaint as last amended.
Respondents demurred to the original bill and to its several aspects, assigning, in all, 39 grounds. The demurrer was sustained. The bill was then amended by adding thereto paragraphs 5.1 and 6.1. The respondents refiled their demurrer to the bill as thus amended. This appeal is from the decree sustaining that demurrer.
The bill alleges that complainants are over the age of 21 years, are all taxpayers in Pickens County, and that all, except complainant K. A. Scott, are residents of Pickens County, Scott being a non-resident of the State. It further alleges that the respondent Pickens County is "an involuntary body corporate, organized and existing under and by virtue of the laws of the State of Alabama"; that the other named respondents are the regularly elected and qualified members of the court of county
"4. That under and by virtue of the laws of the United States of America and the State of Alabama, there exists a system for the financing of the cost of road construction in the Counties in said state whereby 50 percent of the cost of said roads is borne by the United States Government, and 25 percent of such cost borne by each the State of Alabama and the County in which said road is to be built and whereby said roads are built in conformity with the laws of the United States, the rules and regulations of the U. S. Bureau of Public Roads, the laws of the State of Alabama and the rules and regulations of the Highway Department of said State and the acts and doings of the Court of County Commissioners or other governing body of the County within whose bounds such a road is to be built; that such a road is known as a `State Grant County Project Road' and designated as an `SGCP' road project and that under the laws and rules and regulations of such Federal and State governments and agencies, which are administered by Agencies of the State in the case of each project so originating, organized and set up, the State with 50 per cent Federal Funds and 25 per cent State funds matches 25% of the Cost of said roads supplied by the County from County funds and which said funds, under said laws, rules and regulations, cannot be obtained by borrowing or by issuing warrants in anticipation of funds coming to the County from State Gas Tax Funds but must be funds which the County has on hand for use in road construction and originating otherwise than from State Gas Tax Funds distributed or to be distributed to the various Counties from the fund consisting of three cents of the State Gas tax on each gallon of Gasoline sold within the State or from the proceeds of warrants issued in anticipation of money to be received from each Gas tax fund.
"5. Complainants further show that the said Court of County Commissioners caused a road to be surveyed and located in said County along a line from Lamar County line near Andrews Chapel and Liberty School Southwesterly to Ethelsville and on Southwesterly down through the Macedonia Community to Bethel Church and thence on Southwesterly to and through the Pine Grove Community intersecting the Carrollton-Pine Grove road at or near the Churches and Community House in Pine Grove Community and continuing along said Pine Grove-Carrollton road to its intersection with Alabama Highway No. 40 near the Mississippi State Line and submitted said road for approval by the State of Alabama Highway Department; that said Highway Department disapproved said road on account of the fact that it had as its Southern terminus a road not a State Highway; that as located from Bethel Church to said intersection of said Carrollton-Pine Grove Road, said road, designated as SGCP-2-54C followed along a route whereby it would have served well as a road to benefit complainants and many other persons along said route and would have served the general public advantageously and in order for it to have been approved by the Alabama State Highway Department for construction as an AGCP project, it would have only been necessary to extend said road Southwesterly for about four miles over a route crossing no streams of consequence and requiring no bridges but serving numbers of residents along the way and living on lateral roads to said route; that, instead of so locating said road and permitting the same to run through the central part of the Pine Grove Community
"5.1 (Added by amendment) Complainants would further show that at a meeting of the Court of County Commissioners at some time near the month of September, 1954, some of the complainants and others appeared in an effort to cause to be built and constructed a road running from Bethel Church to the Pine Grove Community Center substantially as described in Paragraph 5 at its beginning; that it was the expressed wish and desire of those so appearing to have a passable gravel road constructed along said route to enable some of the people living along said route to have an outlet to the County road system and others to have better approaches and accesses to said system and its highways; that it was pointed out to the Court that some of the people along said route had no outlets to public roads except long private roads, ill constructed, ill drained and impassable in bad weather and that a public road laid out and constructed along the route above described would be of great benefit and service to a large number of the inhabitants of the area as well as the general public; members of the Court expressed agreement that a road should be built but suggested and urged that a survey of the road be made by the County Engineer, that a right of way wide enough to permit construction of a black top road to meet Federal and State specifications be staked out and obtained; that later such a survey by the County Engineer was made of a road following substantially the route above described but running into the McShan-Pine Grove road near the house of the Complainant Willie L. Wright; that employees of the Pickens County Road Department using bulldozers, graders and other County equipment and tools, cleared a right of way 80 feet wide through portions of the said route as the same was surveyed through woods and fields of those living along the same; that some of the members of the Court of County Commissioners rode over said route and expressed approval of the same as being in the place that it should be; that said clearing and the uncompleted grading and construction done along said route and in the right of way designated for said road but never granted by the owners, was done at a large expense for the clearing, grubbing and grading and resulted in considerable damage to the property over which it was done, but the said road has never been made passable except over a small portion of the same and was abandoned by the County when the Court of County Commissioners on motion of Commissioner Sanders and second of Commissioner Curry, voted unanimously to change the said road from the course where at the expense of the County and to the damage of the property owners along the route, a large part of the right of way of the road had been cleared and a marked percentage of the grading for a road bed along the same had been done, and to locate the same as last described in paragraph 5 of the original bill of complaint; that in all about two and one half miles of right of way eighty feet wide were cleared, about a half mile of said road on the lower end was gravelled and at this time there are piles of gravel and spread gravel on said right of way over which traffic by the public is impossible and which
"6. Complainants would further show unto the Court that the said road as finally located and surveyed will be of great benefit only to those who live right on the same, that the same will not connect with lateral roads and afford those persons living on lateral and connecting roads access to the use of it to the extent that a road built by the extension of the original location of said road would have done and that the few persons living along it would have much better access to good roads if said road had been built as originally planned and extended than complainants and those many others who live along the original proposed road and its connecting roads would have if the said road is built according to the present plan of the respondents, and that generally said road as so located will not be of benefit to the taxpayers, and residents of Pickens County nor to the general public.
"6.1 (Added by amendment) Complainants would further [sic] unto the Court that there would be less bridging and fill work to be done on the extension of the original route proposed for said road and that the utilization of the right of way which the Respondents have caused to be cleared and partially graded as aforesaid and which they have abandoned would make said road be cheaper to construct, and the same would have a tendency to develop the center of the Pine Grove Community located at the intersection of said road with the Carrollton-Pine Grove road and that if said road is not utilized, a large number of those persons whom it was originally intended to serve will be yet without access to a public road and large sums of County money will have been expended in the commencement of the construction of a road which if not completed will result in a waste and total dead loss of the funds so expended and leave a devastated strip of land eighty feet wide and some two and one half to three miles long across lands of some of the complainants and others who in good faith consented and agreed that said lands might be used without cost to Pickens County for the construction of a road and in return for their said agreements, the Respondents, at a great expense, laid waste to the lands, broke their agreement, abandoned the route and left said people more in need of a road than before any action was taken by the Court on said road.
"7. The Complainants would further show unto the Court that at the regular December, 1956, meeting of the Court of County Commissioners of said County a motion, made by W. W. Curry and seconded by F. H. Sanders, was adopted without a dissenting vote, that the Court authorize W. E. Farrar to issue $260,000.00 three cent gasoline tax warrants to meet Pickens County's share of Pine Grove Road, Ethelsville Road North and Ethelsville Road South and Echola Road at best interest rate possible, and pursuant to said action and at its adjourned meeting on January 3, 1957, the Court authorized the issuance of $260,000.00 `Series A. Warrants' bearing interest at 4¼% per annum until maturity and 6% per cent per annum thereafter and set up a special fund known as `State Gasoline Tax Anticipation Warrant Fund A' and set up a schedule of payments to be made into said fund from January 1957 to and through July 1970, to be paid solely from (a) sums which shall become due and payable to County as payment of its share of State Tax and allocated and distributed pursuant to Section 655 of Title 51 of
"8. Complainants would further show that at said adjourned meeting of the Court of County Commissioners on January 3, 1957, said Court on the vote of Chairman Farrar and Commissioners Davis, Curry and Sanders, the then Commissioner Cook, being absent, the Court accepted the offer of R. W. Knight and Company of Birmingham, Alabama for the purchase of $260,000.00 principal amount of 4¼% State Gasoline Tax Anticipation Warrants, Series A, dated August 1, 1956, for the purchase price of 97½% of the face value of such warrants and authorize the Chairman of the Court to deliver the Warrants."
The relief prayed for is as follows:
There is also a prayer for general relief.
Some 17 grounds of the demurrer are addressed to the bill as a whole, 11 grounds "to that aspect of the bill seeking to have the court order that the construction of said road, as last surveyed and planned is such that it would not benefit the general public and will be against the interest of the general public as well as the complainants and those persons who live in the surrounding areas and whom it should serve," and the remaining 11 grounds "to that aspect of the bill seeking to have the court order that the issuance by the court of county commissioners of Pickens County, Alabama, of the Series A 4¼% State Gasoline Tax Anticipation Warrants to raise funds to match Federal and State funds in order to construct State Grant County Project Roads is improper and illegal."
The position taken by appellants is that the bill is one for declaratory judgment; that it presents a justiciable controversy which should be settled, and for this reason the demurrer should have been overruled and a declaration of rights made and entered "only after answer and on such evidence as the parties may deem proper to introduce on submission for final decree." Curjel v. Ash, 263 Ala. 585, 589, 83 So.2d 293, 296, and cases there cited.
It is our view that the demurrer to the bill as last amended was properly sustained. Even if the bill should be construed
The powers of courts of county commissioners with regard to public roads are prescribed in § 43, Tit. 23, Code 1940, as amended by Act No. 729, appvd. Sept. 17, 1953, Acts 1953, p. 984. See, also, §§ 5 and 11, Tit. 12, Code 1940.
It has been held that the exercise of the discretionary power given to the boards mentioned in § 43 cannot "be restrained or reviewed, unless it has been in a fraudulent, corrupt, or unfair conduct of the business of the county." Ensley Motor Car Co. v. O'Rear, 196 Ala. 481, 483, 71 So. 704, 705; Bentley v. County Commission for Russell County, 264 Ala. 106, 109, 84 So.2d 490, 493.
In the O'Rear case it is said:
From the Bentley case is the following:
Appellants' brief contains the following statement:
Appellants' argument, as we understand it, is that the bill contains allegations sufficient to show "unfair dealing" by the court of county commissioners in clearing a right of way over lands of appellants and then abandoning such proposed roadway in favor of the location here complained of, it being further alleged that the new location will not be for the benefit, but against the interest, of the general public as well as the complainants and those persons living in the surrounding areas. In the final analysis, the real issue in the case seems to be
From Pruett v. Las Vegas, Inc., 261 Ala. 557, 561-562, 74 So.2d 807, 810, is the following:
In Alabama Great Southern R. Co. v. Denton, 239 Ala. 301, 305, 195 So. 218, 221, supra, it is stated as follows:
As to the gas tax warrants, there does not appear to be any justiciable controversy existing between the complainants and respondents. It affirmatively appears from the bill that the warrants have already been authorized and issued. Instead of showing a justiciable controversy it seems to us that the bill is more in the nature of a review of action already taken by the court of county commissioners. Such a review is not available by way of declaratory judgment. In the recent case of Johnson v. Yeilding, Ala., 100 So.2d 29, 32, in referring to the holding in the case of Mitchell v. Hammond, 252 Ala. 81, 39 So.2d 582, it was said:
The decree appealed from is due to be affirmed. So ordered.
LAWSON, SIMPSON, STAKELY and MERRILL, JJ., concur.