The Birmingham age-herald., 1916-09-28

The fair is not a proposition to bring jtrade to the local merchants primarily. It is designed as an exposition of Ala bama's products, say fair officials, and at the same time it is the desire of everyone in Birmingham to make yisi-
 tors to the fair enjoy their stay here. Therefore, the merchants are cooper
 
 the court of county commissioners a court of original and unlimited juris- l diction, instead of one of special and limited jurisdiction. Tn fact, the statutes
 so declare This brings us to the third | and last proposition, that which charges | fraud and bad faith on the part of the | members of the board of revenue
 SURPLUS CHARGES
 1 The allegations of the amended bill, unless they tend to show some light on
 one of the three propositions hereto
 fore stated, may be considered as sur plusage. The court. in determining the question before it, unless sSme light is
 thereby thrown on the material aver
 ments of the bill. cannot consider whether the Nichols Fishtrap road Is 1 a needed or necessary road or not; or whether another road already built or under construction would serve the same purpose; or whether the cost of l
 the road runs through wild and un-
 settled country; or other matters of
 this nature. The legislature of 1915 l (acts 1915, page 573), provides that
 "courts of county commissioners, boards of revenue, or courts of like jurisdiction, are courts of unlimited | jurisdiction and powers as to the con- lstruction, maintenance and improve
 ment of the public roads, bridges and l ferries in their respective countless" I and it has been decided by our supreme lcourt that the courts have no right or jurisdiction to interfere with a board 1 of revenue in the lawful exercise of | their discretion in the establishment
 and construction of roads, or in the performance of their other public du- ties. If the law was otherwise and 1t
 allowed interference by the courts in
 such matters them the courts, if they so desired, could soon usurp both the Legislative and the executive branches of our local government.
 I In the case of board of revenue of lCovington county against Merrill (6S sec. 974) the supreme court said: | Courts of county commissioners and boards of revenue have the exclusive power to determiT the necessity for 1 the erection of a CIV courthouse or for making all other Improvements for the citizens of the county. And, when the exercise of the power is free from fraud, corruption or unfair dealing that amounts to collision, their acts in that 1 judicial tribunal. notwithstanding the improvement may be unnecessary or i may be an unwise expenditure of the county's funds"
 PROOF MUST BE CLEAR | The amendment to the bill, which
 amendment was filed several days after the granting of the temporary injunc- l ton, but which the court holds relates back to the filing of the original bill, contains the averment of fraud and bad l faith on which the complainant relies.
 The fraud and bad faith on the part | of members of the board of revenue are charged in this amendment in gen. I eral terms, but we must look to the l particular averments to ascertain what l constituted the acts of fraud. Boiled
 down and concisely stated, they are substantially what is shown under
 proposition three above. The injunc- l tion here is against the members Of
 the board of revenue and some fraud or 1 bad faith amounting to collision must be brought home to them or some of i them individually. The proof of fraud must be clear and convincing and not rest on inference or suspicion (Long
 ct als. vs,l Shepard. ct als., AS Sou,
 675). Under the Alabama authorities
 and undey the evidence before the court l on this motion, the court cannot sus- l tain the injunction on this ground. 1 It is therefore adjudged, ordered and decreed by the court that the tempo
 rary injunction heretofore issued in
 said cause be and the same is hereby dissolved. c. B. SMITH, | Should an appeal be taken by com
 plainant from the foregoing decree dis solving the temporary injunction in l this cause, under the discretion a1- l lowed by section 4536 of the code Of
 Alabama, and that the present status | may be preserved pending decision Of l the appellate court, the court orders
 and decrees that upon an appeal being taken by complainant and upon com l plainant entering into a good and suf- l ficient bond as provided by law to | be approved by the clerk and register,
 in the sum of two thousand ($2O0o) dollars, said temporary injunction in
 this cause be reinstated.
 c. B. SMITH, Judge. 1 When Dr. R. F. Lovelady, president of 1 the board of revenue was informed of
 Judge Smiths deci; .on last night, he would make no comment other than that
 he had nothing to say for publication. 1 T am like the little boy the cart ran
 over," said pr. Lovelady. T haven't got word to say. The injunction of the
 Nichols F'ishtrap road is an issue at
 court. and while it is in the courts I | do not feel that I should discuss the
 matter from any angle"
 | John w. Sibley chairman of the Cham
 Der of Commerce Warrior highway com
 mittee, when informed of the opinion of | Judge Smith. stated: WANTS ADEQUATE BOND T sincerely hope that Judge Smith will conduct a hearing to allow our side to plead for the setting of an adequate bond. The decision to dissolve the Hyche | injunction is valueless to us unless a bend commensurate with the importance of the case is set by Judge Smith. We hope for an opportunity to be heard on this phase of the matter True, the bond has already been set for an appeal, but | we should be heard in protest against l such an inadequate bond and request that | it be made higher,
 ! Lawrence H. Pennington, when told
 that Judge Smith had dissolved the Hyche | injunction. said:
 "I am mighty glad Judge Smith dis 1 solved the injunction,'' as the complaints of Hyche had no legal standing It was I.t~- -H t.k--