Barbour County v. Horn, 48 Ala. 649

48 Ala. 649 | Ala. | 1872

PETERS, J.

Counties, in our system of government, are not the same that they were at common law. They are purely statutory creations, and are incorporated for special purposes. Their liabilities grow out of their corporate powers, and for wrongs committed in the use or misuse of these powers, they are subject to be sued.—Rev. Code, § 897; Autauga County v. Davis, 32 Ala. 703. But the weight of authority and principle are opposed to subjecting them to any common law liabilities.—Russell et al. v. County of Devon, 2 Term R. 667; Mitchell v. Tallapoosa County, 30 Ala. 130; Van Eppes v. County Commissioners of Mobile, 25 Ala. 460; 2 Kent, 274, margin, and cases cited in appellant’s brief; Barbour County v. Bronson, 36 Ala. 362, 366. Such corporation is an artificial person, “ invisible, intangible, and existing only in contempletion of law.” It can only act through its agents, and these must confine their acts within the limits of their powers in order to bind the county. That is, such agents can do only what the county could do for itself had it the capacity to act without their aid. This is the law of all agencies with special powers.—Golding v. Merchant & Co., 43 Ala. 705; Waring v. Henry et al, 30 Ala. 721; 2 Kent, 620, 621.

In this case, the agency of the corporation is conferred upon the court of county commissioners to contract for the building of bridges in certain cases, but no power to prevent the injury complained of.—See Smoot v. Wetumpka, 24 Ala. 112; Barbour County v. Brunson, 36 Ala. 362. The law does not impose upon the county a general liability for injuries occasioned by the insufficiency of all the public bridges built within its limits for the passage of travelers, but only a special liability. The complaint, then, must show such a statement of facts as brings the case within this special liability. Among these facts it must be alleged that no guaranty was taken from the builders of the bridge, or that such guaranty was taken, and that the time stipulated for its continuance had expired before the injury complained of was inflicted. One of these alternative facts must be stated along with the other necessary allegations of the complaint, in order to show a right of action. — Rev. Code, § 1396; Covington County v. Kinney, 45 Ala. 176. I quote below so much of the statute as shows the necessity of the one or the other of these allegations. It is in these words: “When a bridge or causeway has been erected by contract with the oounty commissioners, with a guarantee, by bond or otherwise, that it shall continue safe for the passage of travellers and other persons for a stipulated time, any person injured in person or property before the expiration of such period by defect in such bridge or causeway, may sue in his own name on the bond or other guaranty, and recover damages for the injury; and if no guaranty has been taken, or the period has expired, may sue and recover damages of the county.” — Rev. Code, §1396; Code § 1203, The complaint in this case bases the right of recovery on the latter alternative: That is-, that a guaranty was given as required by the statute, and the period of time stipulated therein, during which the bridge should continue safe for the passage of travellers and other persons, had expired before the plaintiff was injured as alleged in this complaint. Such a complaint is sufficient. — Barbour County v. Brunson, supra.

It is said by the learned counsel for the appellant that to apply the statute found in the Code to this case, is to give it a retrospective effect; which is not usual with such enactments. I think a more careful study of this statute obviates this objection. The law is one providing a remedy for injuries which have accrued in a certain manner. It is to be applied to such injuries as have accrued since its passage. In such an application it cannot be said to be construed so as to act retrospectively. This could only be when the injury happened before its passage. Such is not the case here. Here the remedy is applied to injuries which have arisen since the passage of the act, and not to such as might have arisen before its passage. — Smith’s Com. p. 289, §149; 2 Bour. Law Dict. 12th ed. p. 475— word Retrospective ; Satterlee v. Matthewson, 2 Pit. 380. The statute referred to went into effect on the 17th day of January, 1853, and the injury complained of is stated to have happened on the 10th of October, 1858. Whether the section of the Code above mentioned applies to a case like this, is to be referred to its language. That most clearly comprehends this case. And the reason and purpose of the law also concur in this construction as strongly as they could in the case of a bridge contracted to be built since the passage of the enactment giving the remedy. The purpose of the law would be the same in either case, a legislative effort to secure the safety of the citizen against injuries occasioned by insufficient and unsafe bridges on the highways of the State. When this case was here before, it seems to have been taken for granted that the county commissioners had authority to contract for the building of the building in question, and to take the guaranty referred to in the Code.—Barbour County v. Horn, 41 Ala. 114. The law creating the powers of the commissioners court is somewhat obscure before the Code. A court called the commissioners court of revenue and roads was established in 1821, and, among other things, its jurisdiction was made to comprehend “all powers in relation to roads, bridges, highways, ferries and causeways, which are at present given to and exercised by the orphans’ court.”—Toulmin’s Laws of Ala. p. 200, §§ 28, 29, 30. At the time the county court of county commissioners were “ authorized and required to contract and agree for the building, keeping and repairing ” of bridges within the county limits. — Toulmin’s Laws of Ala. p. 395, § 13. This continued to be the law up to the compilation of Clay’s digest of the laws of Alabama in 1843, which included the laws then in force at the close of the session of the General Assembly of February, 1843. — Clay’s Dig. 149, § 1; Clay’s Dig. p. 511, § 19; Aikin’s Dig. p. 86, §1; Aikin’s Dig. p. 36, §24.

This was then the law before the adoption of the Code and up to that event. But all this law was not carried into the Code, and, consequently, all that is not found in that compilation is repealed. — Code, § 10. The law of the Code restricts the powers of the commissioners court to contracting for the building of toll bridges, in which a guaranty is required and none others. — Code, §§ 1189,1191,1196,1197; Rev. Code, §§1381, 1388, 1389, 1390.

The section of the Code above quoted which makes the county liable for.injuries which accrue from the unsafe condition of bridges built by contract with the county commissioners, refers as well to bridges that might have been built before its passage as to bridges that might be built afterwards, as will be seen by inspection of the language of the statute itself. It clearly comprehends all bridges built under contract with the county commissioners, whether they be toll bridges erected since the proclamation of the Code, and under its provisions, or to free bridges established before the Code went into effect. At the same time it is perfectly clear that the commissioners court is one of very limited jurisdiction. All its powers are statutory. — Shep. Dig. p. 511, § 1. Then this court cannot bind the county, except in the manner and to the extent prescribed in the statute conferring the authority to act. But before the Code, and until it went into effect, as the law then existed, the commissioners court could contract for the budding of a bridge. All the terms of this contract were left to the court. The court could then proceed in the matter of the contract according to its own discretion. Any terms which would amount to a rational exercise of so general a power would be sufficient.— McClure’s Executors v. Spotswood, 19 Ala. 165. The commissioners might dictate the terms of the contract and all its incidents. They might demand and take a guaranty for the safe passage of travellers and other persons over the bridge, to continue for such length of time as they might *be able to agree upon, with the builder, or they might omit to demand or take such guaranty altogether. They might also fix the payee in the bond when the guarty was by bond- This might be any competent person not forbidden to enter into contracts. I therefore think that the bond in this instance is sufficient as a guaranty to bring the case under the influence of the section of the Code above quoted. — Code, § 1203; Revised Code, § 1396; Barbour County v. Horn, 41 Ala. 114.

This disposes of all the questions raised upon the record, except the charges given and refused by the court on the trial below. There were twelve of these charges, five of which were given and seven asked and refused. And the ruling of the court was excepted to by the defendant below, in both instances.

The proof tends to show that the bridge in controversy was erected by contract with the county commissioners of Barbour county, between the 16th day of August, 1852, and the 1st day of September of the same year. The erection of the bridge costs sixty-six dollars. An allowance for this sum was made on the 6th day of December, 1852, by the commissioners court of said county. The indemnity or guaranty taken for the safety of the bridge and keeping it in good repair was by bond, in the penalty of one hundred and thirty-two dollars, which was double the cost of its erection. It was made payable to “William R. Gowan, judge of probate court, and his successors in office.” It bears date the 6th day of December, 1852. “The condition is expressed in the words following, to-wit: “The condition of the above obligation is such, that whereas, the above bounden Hansford Dowling was the lowest bidder and undertaker of the building of a bridge over Lick creek, at the place known as the camp ground bridge, for the sum of sixty-six dollars; and whereas, said bridge having been completed in accordance with the stipulations agreed on at the time of letting; now, if the said Dowling should keep the said bridge in good repair for the term of six years, then this obligation to be null and void; otherwise to remain in full force and virtue in law. This the day. and date above. written.” The testimony also tends to show that the bridge was in unsafe condition and not in good repair, and that the plaintiff Horn, in attemping to pass it on the 10th day of October, 1858, was thrown from it with his horse and buggy and very seriously injured.

Neither the bond for the guaranty nor the order of the commissioners court for the allowance of the sixty-six dollars, the price to be paid for the erection of the bridge, show with certainty when the period during which the bridge was to be kept in good repair expired. The first charge given to the jury assumes that the bond was void— or that the period of six years during which the bridge was to be kept in good repair, had expired. In either sense the charge was incorrect. The bond was not invalid, as has been above shown, and a charge that the period of six years covered by the guaranty had expired, is a charge upon the effect of the evidence, without being so required by one of the parties. This is error. — Revised Code, § 2678; Edgar v. The State, 43 Ala. 45.

The second charge given is erroneous for a like reason. It also assumes that the bond was void, or that the guaranty had expired. This was also a charge upon the effect of the evidence, and erroneous unless it appears that such a charge was requested by one of the parties. — 43 Ala. 45, supra.

The third and fourth charges given and excepted to were free from error. Travel is an ordinary and common business of the country. All persons, young, middle aged and old, may engage in it. Then, such diligence as would reasonably be required in the ordinary business of life would be sufficient. These charges do not go beyond this. — Owners of Steamboat Farmer v. McCraw, 26 Ala. 189, 203.

The evidence tends to show that the bridge was built with balustrades or hand-railing, and was so accepted by the commissioners court. Such fixtures then were deemed necessary for its safety when it was built, as they would hardly have been put up for mere ornament. The bond required and given, was that the bridge should be kept in good repair for a period of six years. As the security of the bridge for passage was a question in the case, and there was evidence tending to show the destruction of the hand-railing, the charge upon this portion of the evidence was in conformity with the law. It was not erroneous. This was the fifth charge.

The first charge asked by the defendant below was properly refused. It was not a charge upon the evidence. It was abstract. The proof shows that the bridge was not erected by contract under section 1203 of the Code of Alabama. It was erected before the Code went into operation. And this section of the Code was not in force when the bridge was contracted to be built. The same may be said of the second charge asked and refused. It is not a correct statement of the law applicable to the testimony. This results from what has already been said upon the statute providing a remedy in a case like this. The third and fourth charges should not have been given as asked by the defendant below. They show no matter of law which is a legal defense to the action. Their refusal could not operate as an injury to the party asking them. The action of the court complained of must not only show error, but it must show injury also; else the cause will not be reversed. Error and injury must both combine in order to justify a reversal. — Shep. Dig. p. 568, § 82 ; Gregory v. Walker, 38 Ala. 26; Bell v. Chambers, 38 Ala. 660; Hawkins v. Dumas, 41 Ala. 391.

The fifth charge asked and refused should have been given. It was a correct statement of the law applicable to the evidence; and the same may be said of the seventh charge asked and refused. They contain certain correct expositions of the law applicable to the evidence. — Barbour County v. Brunson, 36 Ala. 114; Revised Code, §1396.

The sixth charge asked and refused ¡should not have been given. The date of the bond is not necessarily the time at which the period of the guaranty should have its commencement. This was a bond entered into before the Code took effect. Such a bond might fix the period of commencement of the guaranty at the date of the bond, or it might be fixed independently of the bond, at the completion and acceptance of the bridge, or at such time as might be agreed upon by the parties. This was a fact, then, not without dispute. The law did not settle it. The charge takes it from the jury, and as such it is an invasion of their province. Such charge should be refused. — Shep. Dig. p.459, §13.

For errors above pointed out, the cause must be reversed and remanded for a new trial, and the judgment of this court will be entered accordingly.

Note bx Repobiee. — The opinion in this ease was delivered at the January term, 1871. Both the opinion and the transcript in the ease were misplaced in some way in the Clerk’s office, and did not come into the Reporter’s hands in time to be reported earlier.