The Birmingham age-herald., 1924-04-29

lected municipal ticket, composed en- pertinent in city government is being commission was vigorously attacked by Horace c. W'Ikinxan of Birmingham in thc hearing today in circuit court before Judge Leon McCord of the ease in which citizens Of Boligee and vicin- 1 ity are seeking t1 restrain the high way body from 6aIouring the E0saw. Livingston road via Gainesville, home town of Chairman John A. Rogers.
 "The alleged body purporting to be i the highway commission has no more authority to act than 1 or the man on the street." Judge Wilkinson declared. He stated that the constitutional amend ment authorizing the $25,O0O,O0O road bond issue when it referred to and pre- scribed duties of the highway commits sion had reference to the commission as it then existed, composed of 12 mem- bers. Although the 12-member commits mission was not specifically mentioned as to the number of members compos- 1 ing it, in the amendment, Judge Will kinson held that the commission as it 1 then existed was adopted" in the amendment, and that its members be. came constitutional officers. ''The legislature has attempted to abolish a constitutionally recognized and adopted tribunal" he asserted. 1-
 Caption Held Incomplete
 Judge Wilkinson also attacked con- stitutionality of the act of 1923 on the ground that the caption was not broad enough to clearly cover the contents of the act. He cited case where an ut. l tempt was made to amend the city commission of Mobile, the amendment providing that the commission form of government might be abolished by vote of the people under guise of an amend ment. The caption of the 1923 high way act, which purports to amend q previous act providing for the con- structiOn, maintenance and repair of the public roads of the state, without reference in the caption to abolition of the old commission and establishing the three-man commission is not adequate, | Judge Wilkinson claimed.
 Judge Wilkinson also declared that Chairman John A. Rogers is disquali- l fled from passing on the location of the road via Gainesville because he and relatives of his are financially interested in the Gainesville location. He offered a map showing that land owned by Mir. Rogers, his brother, his sister, his son, and land on which he has a mortgage is located along the line of the Gaines vile route. Judge Wilkinson further claimed that the act of the 1915 legis- lature locating the Eutaw-Livingston road as first introduced provided for the location on the direct route via Boligee and that it was amended through efforts of Rogers, then a mem- Der of the state senate, to go via Gaines vile.
 Defends Highway Board
 J.. F. Aldridge of Eutaw made the opening argument in the case, repre- senting the highway commission. He held that the caption of the 1923 high way act is sufficient, that in order to construct and maintain roads of the state it was evidently necessary that machinery for carrying on the work be constituted, and that it was not neces- sary to so into minute details in the caption as to who should constitute the commission. He contended further that the location of roads is a matter of judicial or legislative authority vested by laWin the highway body, and that complaifiants were seeking to take away this authority and vest in the courts. He cited cases where courts had held that courts of county commissioners possess discretionary powers, such as he claimed for the highway commission.
 On the subject of alleged collision between Commissioners Rogers and Sut- tie to favor the Gainesville detour, Mir. Aldridge declared that these charges were absurd, and he also pronounced absurd the attempt to bring into the legal aspect of the case campaign prom ises said to have been made as to ex- penditure of road money under federal supervision and the recommendations of federal engineers. Mir. Aldridge stated that the claims of collusion be- tween the two commissioners were mere conclusions of the complainants, un- substantiated by fact. He stated that the route via Gainesville would tend to better connect Pickens and Greene counties county seats, as well as Greene and Sumter, and that 80 per cent of the taxpayers of Greene county have signed petitions favoring the route via Clinton and Gainesville.
 Hugh Mallory of Selma, who spoke next for the highway commission, read an affidavit from w. S. Keller, state highway engineer, stating that the loca' tion from Tuscaloosa to Eutaw and via Gainesville to Livingston had been made on a map submitted to the legis- lature of 1915, and adopted by that body. Mir. Keller in his affidavit stated that the Gainesville route is the most feasible.
 An affidavit was read from Chairman Rogers branding as false the charges of collusion against him.
 It was claimed that the element of directness alone is not the sole matter considered in location of highways, and instances were cited where other loca- lions have been made not on the most direct air line, but on routes which ' IoI