Chambers County v. Lee County

55 Ala. 534 | Ala. | 1876

MANNING, J. —

Lee county was created by an act of the general assembly, approved December 5th, 1866, of portions of the counties of Chambers, Tallapoosa, Macon and Russell; and the property embraced in the new county that was taken from each of the others was, by the 5th section of the act, made “ liable to taxation for the pro-rata proportion of any debts” then due from those counties, respectively, to be levied, collected, and paid by the proper authorities of the new county. This was in effect provided for by the act creating the county of Lee. By another act, passed at the same session of the general assembly, which is incorporated in sections 28 and 29 of the Revised Code, it was enacted, as set forth in the latter section, that “ the Court of County Commissioners of any county, from which a portion of its territory and inhabitants has been taken to form a new county, must ascertain, as nearly as practicable, the entire debt of their county at the time such portion of their county was taken off, and, out of such indebtedness, must ascertain the pro-rata share due from that part of the county taken off, and transmit a certified statement of the amount to the Court of County Commissioners of the new county to which such portion of their territory has been attached; and the Court of C.ounty Commissioners of the new county must then issue a certificate of indebtedness for such certified amount, in favor of the county making such certified statement, which shall be paid by said new county as now provided by law for the payment of county dues.”

The complaint of Chambers county in this cause sets forth, that such ascertainment of its debt existing when Lee county was created, and of the portion thereof with which Lee county was chargeable, was made out, and a statement thereof certified and transmitted, in August, 1869, to the Court of County Commissioners of Lee county, and its certificate of indebtedness therefor demanded — all in accordance with the law; and that said Court of County Commissioners of Lee county refused to deliver the said certificate of indebtedness; whereupon Chambers county brings its suit, &c. To this complaint a demurrer was filed, on the grounds, as alleged, that the complaint showed no cause of action to sustain a suit at law against Lee county, and showed that no demand was made within twelve months after the supposed debt became due or accrued. The demurrer was sustained, and the judgment on the demurrer is now assigned as error.

Every county in this State is a body corporate, and may sue and be sued in any court of record. — Lev. Code, § 897. Counties are public corporations, or quasi corporations, created by the State as a means of exercising a portion of its political power by local administrations; on which are imposed a part of the sovereign authority and duty to insure domestic tranquillity, and promote the general welfare, within the territorial limits to which they are assigned. From their origin, and the nature and object of their functions, these local administrations must act under the superintendence and control of the legislature of the State, and be subject to its power. While, therefore, this power must not be so exercised in relation to those sub-governments, if we may call them such, as to violate the restrictions which, in behalf of the life, liberty, and property of the persons residing within their limits, the constitution has imposed upon it- — ■ subject to these restrictions, and not violating the just rights which they are intended to guard, the legislature may command these local administrations to do what the public interest and public justice require. For the performance of their duties, they must have revenues, and they may be allowed to contract debts. The moneys thus raised, or advantages so obtained, are presumed to have been employed for the common benefit, in the making of roads, bridges, and public buildings, or otherwise. And when a county which owes a debt is required to yield a portion of the territory and inhabitants, that should contribute to the payment of it, to a new county, formed presumably for their benefit in part, what can be more in consonance with the public interest and public justice, than that the new county should pay a fair part of such debt? How, in other words, can it be held that the legislature, in requiring it to do so, has imposed upon it burdens wbicb tbe courts of tbe State should refuse to compel it to bear. Tbe division of tbe territory of tbe State into counties, is a needful political arrangement, which the general assembly must make, and may from time to time change, as tbe public welfare or convenience, in its judgment, may require; and adjustments of tbe kind in question must also sometimes be then made, to prevent tbe changes from casting unequal and heavy burdens on a portion only of the people who ought to bear them. The object of the statute, under which the suit in this cause was brought, is to prevent this inequality; and it seems to us a judicious, certainly not an arbitrarily unjust enactment. Being spread upon the statute-book, it gives notice to communities, dissatisfied with the boundaries of their counties, of provisions of the law, subject to which new counties must be made. See, upon the power of the legislature to make such partition of the debt of an old county, between it and a new county composed in part of the old, 1 Dillon on Mun. Oor. §§ 127 and 129, and cases referred to, and sections 36 and 44.

2. In respect to the suit, and the forum in which it shall be brought, if the new county refuses to make the contribution, or deliver its certificate of indebtedness when properly demanded, the statute is silent. In Autauga County v. Davis (32 Ala. 703), this court decided, that if a statute creates a claim against a county, and does not prescribe an adequate remedy for its enforcement, a suit against the county by summons and complaint will be maintained. This was an action at law for physician’s fees for services to a sick pauper of the county. We see no reason why a similar action may not be maintained on the facts constituting the present case. Prima facie, the certified statement, made out according to law by the Court of County Commissioners of Chambers county, presents the correct amount of the claim. It may doubtless, however, be shown to be incorrect, if it is so, and the sum be reduced. Although the calculations for ascertaining the amount may cause some trouble, they can be made by a jury; at least, we see no reason why Chambers county may not sue at law, and leave it to the defendant to seek the aid of a court of equity, if that be found necessary.

In respect to the objection, that the claim was not presented to Lee county, within twelve months after it accrued, according to section 909 of the Revised Code, we need not determine, whether it ought to be made by plea or demurrer. The charge which is the subject of this iitigation, was imposed by a statute, of which the authorities of Lee county must necessarily have notice. It was a debt specifically created by law, composed of a part of tbe debt of Chambers county then existing, with which the new county came into being, and not a debt subsequently arising under the law, out of the transactions of individuals, of which the Court of County Commissioners of Lee county need to be informed. This county received its existence and, as a part of itself, a portion of the territory and inhabitants of Chambers county, cum mere■ — with this debt as a part of the heritage; and it is not one of the class of claims embraced in section 909, which are required to be presented within twelve months.

The judgment of the Circuit Court is reversed, and the cause remanded.