49 Ala. 110 | Ala. | 1873
— This is an action of trespass on the case, instituted by the appellant, Anderson Sims, against the County of Butler, to recover damages sustained by him in consequence of injuries to his property occasioned by the fall of an insufficient bridge on one of the public roads in said county, erected over Pigeon Creek. There were two counts to the complaint, which were both demurred to, and the demurrers were sustained ; and the judgment on the demurrer is now assigned as error.
The complaint fails to allege that the bridge mentioned therein was one erected by contract with the county commissioners, or when the injury complained of was occasioned. Rev. Code, §§ 1396, 1397. The people of the county are the members of the incorporation called the county. They act through the agency of the Court of County Commissioners. The county commissioners can only bind the county by their acts where they are authorized by statute to do so. It is not a duty of this corporation to keep the public bridges in repair, except in cases expressly provided by law, and the case mentioned in appellant’s complaint is not one of these. Covington County v. Kinney, 45 Ala. 176; Barbour County v. Horn, June Term, 1872. The allegation in the complaint, that “ after intentionally omitting to embrace or place the bridge in controversy in any road precinct of said county, as aforesaid, the said defendant (the county), by and through the said Court of County Commissioners, assumed and took exclusive authority, jurisdiction, and control over the said bridge, as a public bridge on a public highway in said county, as aforesaid, and undertook that the
It is true that the Commissioners’ Court is invested with a general superintendence of the public roads within their respective counties ; but this power only gives the authority to “ establish new, and change and discontinue old roads, in the manner ” provided in the Code. Rev. Code, § 1310. They are also authorized to lay off the roads into precincts, and to appoint apportioned and overseers on the public roads. Rev. Code, § 1323. But their failure to perforin these duties, the gist of this complaint, does not impose on the county any liability for injuries occasioned by their neglect. In the case of Barbour County v. Brunson, this court said: “ We do not controvert the argument of appellant’s counsel, that the authority which the Court of County Commissioners exercise over the subject of roads and bridges is governmental in its character, and that the county would not, upon common law principles, be liable for any injury which might result from the failure to exercise that authority in a manner the most conducive to the safety of the public.” 36 Ala. 362, 366. This principle, which is obviously correct, applied to this case, justifies the judgment of the court below.
The judgment of the court below is therefore affirmed.