Dallas County v. Dillard
47 So. 135
Ala.
1908
Check Treatment
SIMPSON, J.

This suit was brought by appellee against the appellant to recover for injury to her property. There is no dispute about the facts thаt the defendant, in improving one of the public roads of the *356county, so changed the grade opposite to and adjoining the proрerty of the plaintiff as to leave plaintiff’s house and premises a considerable distance above the road on a perpendicular embankment, ‍​‌‌​‌​‌‌​‌​​‌​‌​​​‌​‌‌​‌​‌​​‌‌​‌‌‌​​‌​​​‌‌‌​​‌​​‍thus destroying ingress and egress for vehicles. The defendant demurred to the complaint, and the exceptions are tо the overruling of the demurrer and rendering judgment for the plaintiff.

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 рlaintiff’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 corрoration, 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 muniсipal 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 thrоugh 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 sectiоn 1397 of the Code of 1896, which declar.es that “every county is a *357body corporate, with power to sue or be sued in any court-of record.” In the case now under consideration there is no effort to malee the county liable for the negligence of any of its officers in the performance of any governmental functions, nor is there any denial of the fact that the county was authorized to do what it did do, as was the contention in the case of Simpson v. Lauderdale County, 56 Ala. 64; but the question is whether, in the exercise of its recognized powers, the ‍​‌‌​‌​‌‌​‌​​‌​‌​​​‌​‌‌​‌​‌​​‌‌​‌‌‌​​‌​​​‌‌‌​​‌​​‍county became liable fоr the injury which necessarily resulted therefrom.

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 proрerty of the citizen without making just compensation therefor, and our decisions are that just compensation includes, not only the land takеn, 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 placеd -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 providеd 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 *358similar to ours, and a constitutional provision from which our last-cited constitutional provision was evidently copied, held that “a county is • a corporation liablе for consequential damages to private property injured, but not actually taken, in the erection of a county bridgealso that, “thоugh the Legislature has not provided a remedy to enforce this constitutional right so far as counties are concerned, yet, when consequential damages within the provision have been sustained, the right to compensation may be enforced by an action on the case.” — Chester County v. Brower, 117 Pa. 647, 65, 12 Atl. 577, 2 Am. St. Rep. 713. That сourt says: “It [the county] is sometimes called a 'quasi municipal corporation.’ In any event it is a corporation. It has its common or сorporate seal. It acts through its duly constituted officers, and it may sue or be sued. The clause in the Constitution above recited is very broаd in its terms. The framers of that instrument were seeking to redress what this ‍​‌‌​‌​‌‌​‌​​‌​‌​​​‌​‌‌​‌​‌​​‌‌​‌‌‌​​‌​​​‌‌‌​​‌​​‍court has repeatedly declared to be a great hardship, and which was regarded by many persons as a great wrong, viz., the exemptions of corporations from consequential damages where they injured private property without an actual taking thereof.” For the statutory provisions of Pennsylvania, in regard to counties, see Brightly’s Pnrdon’s Dig. (12th Ed.) A to L, p. 436.

It seеms 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 *359this line of reasoning, we think the reasoning and • conclusion of the Supreme Court of Pennsylvania are sound. Whether quаsi or otherwise, under our statute the county is a corporation, though its powers and incidents are limited, and is covered by the broad term “оther corporation”; the emphasis being, not on the nature of the corporation, but on the fact that it is “invested with the privilege of tаking property for public use.”

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 assеss 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.

Tyson, C. J., and Haralson and Denson, JJ.. concur.