James v. Conecuh County , 79 Ala. 304 ( 1885 )

OLOPTON, J.

The action is brought on a bond conditioned to keep a bridge, erected by contract with the County Commissioners, in good repair for the safe passage of travellers and others for a period of live years from February 18th, 1880. The defendants insist, that unless the unsafe condition of the bridge is made known to the court of County Commissioners by a freeholder of the county, as provided by section 1693 of the Code, that court is without authority to notify the contractor to repair it, and to order suit on the bond in case of his refusal or neglect to do so in a reasonable time ; in other words, that such information by a freeholder is preliminary and requisite to the right of the county to maintain suit on the bond for a breach thereof.

Every county, established in this State, is a body corporate, with power to sue and be sued in any court of record. Code, § 815. It is true, the county is a political, or civil division of the State, created as a local governmental institution, for the benefit of the people within its territorial limits. The purposes of its corporate existence are public only ; and it is clothed with corporate capacity to enable the more effectual accomplishment of these purposes. While the authority and duty to construct necessary bridges are governmental in their character, the means by which the power may be exercised, and the duty performed, may relate' to the corporate character of the county. The County Commissioners are authorized to erect bridges by contract, and to take a guaranty, by bond or otherwise, that such bridges shall continue safe for the passage of travellers and other persons for a stipulated time. The power to erect is governmental; but the authority to make contracts, as the means and mode of erecting, .is corporate. General power to sue, and special power to make contracts for specified purposes, confer authority and capacity, in the .absence of statutory limitations or restrictions applicable generally, or to the particular case, to bring and maintain any appropriate action to recover damages for the breach of a contract, which the county is authorized to make; otherwise, it would be powerless to enforce its contracts. The County Commissioners, exercising the legislative and executive powers of the county, are authorized to order such suit to be brought, and to employ counsel for the purpose.—Jack v. Moore, 66 Ala. 184. The question results, does section 1693 impose upon the right and authority of the court of County Commissioners to order suit on the bond of a contractor to erect a bridge, as a limitation or restriction, antecedent information of its damaged condition by a freeholder of the county? When a bridge is erected by contract, and a guaranty taken, any person injured during the period covered by the guaranty may bring suit in his own name on the bond, and the county is exempt from suit and liability; but, after the expiration of the stipulated time, the county may be sued, and damages recovered, by any person sustaining injury by reason of the defective condition of the bridge.—Code, § 1692; Barbour County v. Horn, 41 Ala. 114. The purposes of the bond are two-fold — redress to any person injured during the stipulated period, and protection to the county, at its expiration, against the burden and expense of immediately repairing the bridge in order to avoid the statutory liability. The obligation is to keep the bridge in such repair that it shall continue safe for the passage of travellers and other persons during the stipulated time. The condition of the bond is broken, whenever the bridge is suffered to remain unsafe for an unreasonable time. There can be no rational implication, that it was intended by the statute to exempt the contractor from liability to suit, unless some person was damaged, or some freeholder of the county saw proper to make complaint to the court of County Commissioners. IJpon the County Commissioners is devolved the duty to provide for keeping the necessary bridges in repair; and to enable them to perform this duty, when a bridge is erected by contract, and a guaranty taken, suit on the guaranty may become requisite. The duty is public, and involves the interests of all the people, whether or not freeholders.. Unless so declared, expressly or by necessary implication, its performance should not, by construction, be made dependent upon the voluntary action of any member of any class of the people. Section 1693 provides for the case of a bridge washed away, or so damaged as to become unsafe to the public; and in such case, on the fact being made known by a freeholder of the county, the imperative duty of the court of County Commissioners arises, to notify the contractor, and, on his refusal or neglect to rebuild or repair in a reasonable time, as the case may be, to order suit on the bond. The, statute is enabling in its nature and operation, clothing any freeholder of the county with power to demand the rebuilding or repair of the bridge, or the alternative, a suit on the bond. It was not designed, and does not limit or qualify the general right and authority of the county to sue on the bond, if there is a breach of its condition, and to recover such damages as the county may have sustained.

The measure of damages is the value of such repairs, as a complete performance of the condition of the bond may reasonably require — such amount as maybe required, to put the bridge in good repair, and to continue safe for the passage of travellers and other persons during the stipulated time; not measured with mathematical accuracy, but ascertained with reasonable certainty. The county may repair in the same manner substantially as the contractor was obligated to do, if he had undertaken to perform his contract. Two purposes are to be considered ; the bridge must be put in good repair, and in a state to continue safe during the stipulated time. Whatever materials and work are essential to the accomplishment of both these purposes is authorized, though the consequence may be that the bridge will continue safe after the expiration of the agreed period. The amount which the repairs may cost the county is not the measure of damages, though it may be a circumstance properly considered by the jury in estimating the value of such repairs. The witness, Bowles, having been examined by the plaintiff as to the cost of the repairs and the condition of the bridge, it was permissible for the defendants to inquire of him, on cross-examination, the reasonable value of putting it in good repair, and of keeping it in that condition until the expiration of the contract time. For the error in excluding this question, the judgment must be reversed.

Reversed and remanded.