Barbour County v. Horn

JUDGE, J. Section 763 of the Code declares, that “every county which has been, or may be established in this State, is a body corporate, with power to sue and be sued in any court of record.” This section of the Code does not prescribe on what causes of action a county may, or may not be sued; this question is to be determined by other statutes, and settled principles of the law applicable to suits by or against such or similar corporations. The action in the present case, in so far as the right to institute and maintain it is concerned, is governed entirely by statutory enactments, and it is un [121] necessary, therefore, to enter into an examination of the general question; as bearing upon it, however, we cite the following adjudications of this court: Smoot v. Wetumpka, 21 Ala. 112; Gilmer v. City Council of Montgomery, 33 Ala. 116; Dargan v. Mayor, &c., 31 Ala. 469; Mayor of Mobile v. Rowland & Co., 26 Ala. 498; Barbour County v. Brunson, 36 Ala. 362. Section 1203 is as follows : “ When a bridge 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 travellers 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 has been taken, or the period has expired, may sue and recover damages of the county.” It is averred in the first count of the complaint, that the bridge, the unsafe condition of which is in question, was built under a contract with the court of county commissioners; that a guaranty by bond was taken from the builder, in the sum of one hundred and thirty-two dollars, conditioned that the bridge should continue safe for the passage of travellers and other persons for the time stipulated in the contract; that the appellee sustained the injuries sued for by him, before the expiration of the guaranty; and that the bond is wholly insufficient in amount to secure adequate compensation to the plaintiff for the damages sustained by him in consequence of the unsafe condition of the bridge. The second, and only other count, contains no averment whatever in relation to a guaranty. It was assigned as cause of demurrer to the entire complaint, “that the county was not liable, because the builder of the bridge had given a guaranty, which had not expired when plaintiff received the injury; and because the complaint no where avers that a guaranty had not been taken, or that the period of a guaranty had expired.” The demurrer to the complaint involves the necessity of a construction of section 1203 of the Code, before quote [122] The language of this section is plain and explicit. Within the letter and meaning of the section, if no guaranty has been taken, or the period of one taken has expired, the county may be sued; if a guaranty has been taken, the county can not be sued, no matter what the proportion of the amount of damages sustained may be to the amount of the guaranty. In expressing the contingencies in which a county may be sued and damages recovered, on a cause of action like the present, we hold that it was the intention of the legislature to exclude the right to sue in any other than the contingencies named, under the familiar maxim, “Ex-présalo unius est excluslo alterius.” Were we to hold that, when the amount of the guaranty taken is insufficient to make adequate compensation for damages sustained, that then the county may be sued, we would not only be assuming the exercise of a function properly belonging to the law-making department, but would establish a rule under which it might be difficult, in many cases, to determine whether a right of action against the county existed or not; the liability of the county depending upon the question, whether or not the damages exceed the amount of the guaranty, and the damages being unliquidated, incapable of legal ascertainment but by a verdict. Under such a rule, the amount of the verdict would be the test as to whether a right of action existed or not. It is not, as is supposed by counsel, made the duty of the court of county commissioners, when a bridge or causeway has been erected by contract with them, to take a guaranty of the character designated in the Code. Nor, if such a guaranty be taken, is any rule prescribed as to what shall be its extent; but, if none be taken, as before remarked, the county, in a proper case, may be sued. It would be impossible to foresee, in any case, the amount of damages which might result from a defective or unsafe structure of the kind; and if a guaranty should be required in each case sufficient to cover the contingency of large damages that might accrue, the result would probably be to prevent, to a great extent, the making of such contracts; for, when the structure intended to be erected would not be costly, as was the fact in the case before us, and the profits [123] of the contractor would therefore he small, a person could hardly be found willing, under such circumstances, to incur, as contractor, such heavy responsibility. It results from what we have said, that the circuit court erred in overruling the demurrer to the complaint, and also in giving the first charge stated in the bill of exceptions. The conclusion attained by us will probably be decisive of the case; but two other points suggested by the record, and argued by counsel, we will briefly notice. 2. It is insisted that the bond relied on in this case as a guaranty, is a nullity, because it was not taken by the court of county commissioners, who alone had the authority to take it, but is payable to the “ judge of the probate court and his successors in office,” when the judge of the probate court, as such judge, had no authority or jurisdiction to take such guaranty. If the bridge was built under a contract with the court of county commissioners, and the bond in question was executed by the contractor pursuant to a requirement of said court, and as one of the conditions on which he was to build, or received the contract price for building the bridge, then the bond is not void, but is a valid bond, although it be payable to the judge of the probate court, eo nomine, and his successors in office.—Seawell v. Franklin, 2 Porter, 493; Butler & Alford v. O'Brien, 5 Ala. 316; Whitsett v. Womack, 8 Ala. 466. It is not required by the Code that it should have been made payable to the court of county commissioners, nor to any particular officer; hence, the authorities cited by the appellee upon this question, do not apply. The judge of probate in each county is “principal judge” of the court of county commissioners, and the keeper of the records of said court; is in fact the clerk, as well as the presiding judge of the court.—Code, §§ 697-705. And he may well be the actor in the taking of such a bond, when it is executed pursuant to an order of the court. And in such cases, any act which is intended by the obligors as a delivery of the instrument, will be so treated. — See Sprowl v. Lawrence, 33 Ala. 674, and cases cited in the opinion of the court upon this point, on page 692. 3. Under sections 775 and 2141 of the Code, no suit can [124] be brought against a county, until the claim or demand has been presented within twelve months after it accrues, or becomes payable. Our construction is, that these sections apply to suits for damages like the present, as well also as to claims or demands founded on contract. Let the judgment be reversed, and the cause remanded.