Barbour County v. Brunson , 36 Ala. 362 ( 1860 )

A. J. WALKER, C. J.

Section 1203 of the Code is in the following words : “ When abridge 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 other guaranty, and recover damages for' the injury; and if no guaranty is taken, or the period has expired, may sue and recover damages df the county.”

-It is perfectly clear, that this section, in its literal,import, gives a remedy for the complainant’s injury against the county. But it is contended, that the bridges and causeways referred to must be understood, to be toll bridges and causeways. In support of this position reference is made to the fact, that section 1203 is a part of an article, the caption of which indicates that “toll bridges,causeways, and ferries,” are the only subjects within its purview. It is a satisfactory reply to this argument; that section 1190, in the same article, is not susceptible of any application to toll bridges, causeways or ferries, and that the article is, therefore, clearly not restricted to the subjects mentioned in the caption.

But we think a comparison of section 1203 with other ■provisions of the Oocle, shows that its reference is not to toll bridges and causeways. Section 1203 very clearly relates to bridges and causeways built by contract. The 5th division of section 1159, and the latter clause of section 1189, show it to have been contemplated that the court of county commissioners should have bridges built by contract with the county funds. To the bridges and causeways thus built section 1203 has a very obvious application. Sectiou 1189, which is in the same ,article with section, 1203, authorizes the court of county commissioners to establish toll bridges, causeways and ferries, in rhe manner afterwards provided.. Section 1191 prescribes the manner in which the toll bridges, causeways, and ferries are to be . established. The manner prescribed is, to license persons to-establish ferries, causeways and bridges, to fix the rates of toll, and to require bond, with surety, of specified condition. Bridges and causeways, established by this section, are the toll bridges and causeways which the county commissioners are authorized to establish. They are clearly not the bridges and causeways referred to in section 1208, because they are not erected by contract with the county commissioners, as are those mentioned in 1203, and because they can not be erected under any other guaranty than that of the prescribed bond; while those mentioned in, section 1203 may be erected under a guaranty by bond or otherwise.. But there is still another consideration, which tends very strongly to show that the toll bridges and causeways mentioned in section 1191 are not the bridges and causeways mentioned in section 1203. Section 1197 prescribes the remedy on the bond given under section 1191; and if section 1203 refers to the same bridges and causeways, a remedy upon the same bond is prescribed the second-time, and the legislature is convicted of inserting a vain and useless provision in a code which was designed to be consistent and concise.

After a careful examination and. study of all the statutes bearing upon tbe subject, we can find no reason for giving to section 1203 a construction variant from tbe natural import of its language; and we are constrained to- hold, that the Code has, in that section, prescribed the remedy adopted in this cáse for an injury sustained under the circumstances set forth in the statement of facts agreed upon. ,

We do not controvert the argument of appellant’s counsel, that tbe authority which the court of county commissioners exercise over tbe 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. But the legislature has-unquestionably the power to impose such liability; and we think they have done so, to the extent necessary to sustain the ruling of the court below. — Smoot v. Wetumpka, 24 Ala. 112; Gilmer v. City Council of Montgomery, 32 ib. 116; Dargan v. Mayor, &c., 31 ib. 469.

As it was unrieeessary, we have not considered the questiou, whether the ruling of the court below can be revised upon the record before us, there being no bill of exceptions.

Judgment affirmed.