Covington County v. Kinney, 45 Ala. 176

Covington County v. Kinney

45 Ala. 176 | Ala. | 1871

PETERS, J.

The county is a corporation, and subject to be sued as an individual would be, under the law applicable to its character as such, or under such laws as impose upon it some special duty. — Rev. Code, § 897, It can not be liable in any other way. If there is no law imposing a-certain duty upon the county, there is no liability for the injuries arising from the neglect of such a duty. A corporation is simply an artificial and ideal person, and its liabilities are to be ascertained, like those of a person. The injuries, then, which it commits, must arise from misfeasance or nonfeasance, or from a failure to perform such contracts as it is authorized to make. “ Being the mere creature of the law, it possesses only those properties which the character of its charter confers upon it expressly, or as incidental to its Very existence.”- Marshall, C. J., in Dartmouth College v. Woodward, 4 Wheat. 518, 636.

The charter incorporating the counties of this State is that found in the Revised Code, above referred to. There is no general law of the State requiring the counties to keep the public roads, and bridges on public roads, in safe repair, and this is not a duty incident to the character of the corporation itself. Then, before the county could be held liable for damages accruing from an injury occasioned by the fall of a bridge, or from an insufficient bridge, as a part of the public highway, it must be shown that there is some special law imposing such special liability.

There is but- one instance in which the people of the State, through its legislative authority, have imposed upon *183the counties responsibility for such injuries. This law is in these words: “ When a bridge or causeway has been erected by contract with the county commissioners, with a guaranty, by bond or otherwise, that it shall continue safe for the passage of travelers and other persons for a stipulated time, any person injured in person or property before the expiration of such period, by a defect in such bridge or causeway, may sue in their own name on the bond or 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. And if the contractor shall knowingly suffer any such bridge or causeway to remain out of repair, and unsafe for the passage of travelers and other persons, for more than ten days at any one time, during the period stipulated for its safety by the terms of his contract, he shall be guilty of a misdemeanor, and on conviction shall be fined, for the use of the county, in a sum not less than double the value of the materials and labor necessary to put such bridge or causeway in the state of safety required by the terms of his contract.” Eev. Code, § 1396; Barbour County v. Brunson, 32 Ala. 362.

Beyond this statute, neither the county nor any of the agents authorized to act for it, are bound to keep the public highways or bridges in the county in safe repair, nor to insure the safety of the persons and the property that may pass over them. This is a part of the State’s governmental jurisdiction that has not been conferred upon the county, as a corporation. It rests with another set of public functionaries altogether, who are subject to indictment for a failure, without sufficient cause, to discharge the duty of keeping the public highways m proper repair. Eev. Code, §§ lóál, 1366, 1317.

Erom this view of the county corporations in this State, it is very evident that the analogy supposed to exist between them and the corporations of towns and cities is not, in reality, found to be true. The county is not bound, as a general duty, to keep the public roads and bridges within its boundary in safe repair. It can not, therefore, be responsible for an injury growing out of a failure in this particular. This is otherwise with towns and cities. *184This is a duty which they undertake to perform. If it is badly done, or not done at all, they become wrong-doers, and are liable for the injury they have occasioned. Such is the law incidental to their charters. — Smoot v. Mayor of Wetumpka, 24 Ala. 112; Owsley v. M. & W. P. R. R. Co., 37 Ala. 560; City Council of Montgomery v. Gilmer et al., 33 Ala. 116; Dargan v. Mayor, &c., of Mobile, 31 Ala. 469.

In this ease, there was a demurrer interposed to each count of the complaint. It does not appear from the record that any judgment was given by the court on these several demurrers. In such a case, it must be presumed in favor of the action of the court below, that these demurrers were abandoned 'by the defendant in the court below, and not insisted on. There was no issue taken upon the demurrers, and they are not mentioned in the bill of exceptions. Then it must be presumed in favor of the action of the court below, that they were withdrawn or abandoned by the party pleading them. Omnia presumuntur recte et solemniter esse acta, donee probetur in contrarum. Broom’s Max. pp. 427,428, (marg.); Griffin, adm'r, v. Bland, 43 Ala. 542 ; Eastland v. Sparks, 22 Ala. 607.

Under the foregoing view of the act incorporating the counties in this State, the second and third counts of the plaintiff’s complaint below do not state any legal grounds for a recovery against the county for the acts therein complained of, and the proofs submitted to the jury do not support the allegations of the first count. The court, therefore, erred in the charge to the jury as excepted to by appellant on the trial below.

For this error, the cause is reversed and remanded.