47 So. 135 | Ala. | 1908
This suit was brought by appellee against the appellant to recover for injury to her property. There is no dispute about the facts that the defendant, in improving one of the public roads of the
The contention of the appellant is that a county cannot be made liable for damages to adjacent property by the cutting down of a public road. Its counsel stresses the fact that no part of the plaintiff’s property was “taken,” but admits the injury. The general trend of the argument of the appellant is that a county, being merely a quasi corporation, a mere governmental agency, is not liable to suit, except in cases indicated by the Constitution or statutes of our state. There are numerous decisions in our own and other states which hold that counties are not endowed with all of the powers and functions of municipal corporations, but are governmental agencies endowed with corporate powers and functions, and subject to liabilities only in cases indicated by the statute. Consequently they hold that neither the county, nor its board of commissioners, or other officers, can be made liable for the negligence of said officers or agencies in performing governmental functions. As stated by this court, speaking through Brickell, C. J.: “It is a quasi corporation in the exercise of its corporate powers, and a governmental auxiliary in the exercise of the governmental powers intrusted to it.”- — Askew v. Hale County, 54 Ala. 630, 642, 25 Am. Rep. 730. It is unnecessary to cite all of our decisions on this subject, which may be found in the note to section 1397 of the Code of 1896, which declar.es that “every county is a
Section 28 of our constitution of 1901 provides that “private property shall not be taken for, or applied to public use, unless just compensation be first made therefor” ; so that even the state itself cannot take the property of the citizen without making just compensation therefor, and our decisions are that just compensation includes, not only the land taken, but the injury to the remaining lands. — Harper v. Savannah R. Co., 69 Ala. 529; Com’rs v. Street, 116 Ala, 28, 22 South. 629. This section however, failed to provide for the case of injury to a person’s land by a public improvement, without any actual taking of any part of it; and that distinction is emphasized in the appellant’s brief in this case. An additional section was placed -in our Constitution of 1875, and carried forward into our present Constitution of 1901 (section 235), providing that “municipal and other corporations, and individuals, invested with the privilege of taking property for public use, shall make just compensation, to be ascertained as may be provided by law, for the property taken, injured or destroyed by the construction or enlargment of its works, highways or improvements, which compensation shall be paid, before -.such .taking; injury or destruction.” The Supreme Court of‘ Pennsylvania, with a county organization-very
It seems clear that our constitution makers were seeking to remedy the same evil, when the provisions of the Pennsylvania Constitution were copied into our Constitution of 1875; and it would seem that, when we brought it forward into the Constitution of 1901, after this construction had been placed upon it by the Supreme Court of Pennsylvania, if we had intended it to be construed differently, we would have so changed the phraseology as to make it.plain. At any rate, without.resorting to
The appellant insists that at the time of the adoption of our present Constitution counties were not invested with the power of taking lands for public use; that said power was not conferred until .the act of October 10, 1903 (Acts 1903, p. 412), and that therefore section 235 does not apply to confies. The statutes before that time provided for taking lands for public roads, having viewers to assess the value, and for the payment of the compensation to which the landowner is “justly entitled.” Code 1896, §§ 2445-2448. But, aside from that, Constitutions are adopted for all time, and even though there may not have been, within the state of Alabama, at the time of the adoption of the Constitution, a corporation authorized to condemn lands, whenever the statute conferred such powers, it would be subject to the provisions of the Constitution.
Our conclusion is that counties are included in the. term “other corporations” in section 235 of our Constitution, and that the appellant is liable in this action.
The judgment of the court is affirmed.