Naftel v. County of Montgomery

HARALSON, J. 1. Whatever, may have been the liability of counties at common, law, and whatever may be their liability in the different .States of the Union, under different • statutes, the. policy long adopted in this State has been and is, to remove them from any liability on any account, -except as may be allowed by statute. The weight of authority, as this court has-heretofore said, is opposed to subjecting-them to common law liabilities. — Barbour County v. Horn, 48 Ala. 657. In Van Eppes v. The Commissioners, 25 Ala. 460,— suit against the county for the hire of carriages, under the direction of the judge of the- circuit court, -to convey the grand jurors to the -county jail for the- purpose of. inspecting it,- — -it was said: “The county can be charged only with such expenses as are authorized by 1-aw; ,an:d unless there is some statute, which authorized the judge of the .circuit court to direct the sheriff to provide carriages -to convey the grand jurors to the jail, for the- purpose of inspecting-it, the expense thus incurred cannot be collected out of the -county.” Where there is-no law which; creates the liability, it-cannot be enforced against .the county. — Mitchell v. Tallapoosa County, 30 Ala. 131. The county is only liable for a debt the law .enables it to contract, and which it has actually contracted. — Barbour County v. Clark, 50 Ala. 418; Posey v. Mobile County, 50 Ala. 6. “No claims are chargeable on the county treasury, nor can be paid .therefrom, except such as the law imposes on the county, or empowers it to contract. No officer of the county can-charge it with the payment of other claims, however meritorious the consideration, or whatever may be the benefit the county may derive and enjoy from them.” Jack v. Moore, 66 Ala. 187. These adjudications are full and clear on the principle, that the counties in this State, acting through their officers and -agents, do not have unlimited authority in creating debts, but in their creation they are restrained by, and must act within the power conferred, [568] or such as is necessarily incident thereto. If anything further were needed in this case, it will be found in the act establishing the Board of Revenue of Montgomery County, (Acts, 1874-75, p. 513), in the third section of which act it is provided that said board shall have “the sole right and authority to bind the county of Montgomery on any contract for the payment of money.” Section 4924 of the Code authorizes the coroner of the county under the conditions and in the manner therein directed, to hold an inquest over the body of a person who has been killed, or suddenly diéd under such circumstances as afford a reasonable ground for believing that such death has been occasioned by the act of another by unlawful means. Section 4926 provides for the subpoenaing of witnesses when an inquest is-held, and among them, a physician or surgeon, who must in the presence of the jury, inspect the body, and give a professional opinion as to the cause of death. Any witness thus subpoenaed,(who refuses to answer, is guilty of a misdemeanor. — Code, § 4928. The physician or surgeon is allowed, as a witness, five dollars, with one dollar additional for each mile he may have travelled in attending such, inquest, to be collected out of the estate of the deceased, if solvent, and if insolvent, to be paid out of the county treasury. — Code, § 4936. This section is found under the head of “Inquests,” and must be construed in connection with section 4573, found under the head of “Fees of Coroners.” Both sections make reference to the fees to be allowed to physicians or surgeons for examining the body of the deceased. The latter section (4573), appears in the Code of 1886, as section 4876, and the former (4936), as section 4813; but in the rearrangement of the Code of 1896, the' first appears ahead of the latter as section 4573, and the other afterwards, as section 4936. With such explanation, one understands why section 4573 appropriately refers to section 4936, apphrently later, ahd why the provisions of the last section are referred to as a part of the first named. Said section 4573, in Art. 6, Ch. 141, concerning “Fees of Coroners,” is headed “Fees for inquest, how taxed and [569] paid; post mortem examinations and fees therefor;: other fees” Inquests, on which the fees herein prescribed are based, .are provided to be held in the after appearing Art. 7, Oh. 162, commencing with section 4924. Section .4573, as. to these fees, provides: “Fees for holding inquest shall be paid out of the county treasury, when, in the opinion of the court of county commissioners or board of revenue, the inquest should have-been held. * * * But no fees shall he paid for an inquest when it is publicly known before the jury is summoned, what caused the death of the deceased, or when the slayer has been arrested for the homicide; but in such case, if the immediate cause of the death is uncertain, a physician or surgeon may he summoned to> made a post mortem examination, who shall give his. opinion in writing as to the cause of the death, which; must be returned by the coroner as inquests are returned by him, and such coroner, physician, or surgeon, shall] be entitled to the same fee and mileage, to,, he paid in the1 same manner^ as for attending an inquest,” etc. The coroner’s fees-.are prescribed by section 4572, but the fee of the physician or surgeon is not prescribed in said chapter relating to fees of coroners, etc., and is found alone in said section 4936, — sections 4572 and 4573 having been adopted with reference thereto. It is thus made clear, that each of said sections relate to the same subject-matter, and are to be construed together. But one fee is allowed the physician or surgeon for attending an inquest and giving his professional opinion after examining the dead body, however much labor or skill it may have required, and the fee therefor is specifically prescribed. If it be said, that this allowance is inadequate, a full answer to the suggestion is, that the legislature has prescribed this and no other fee for-such services. It often occurs in rendering services to the State and county, that the citizen is inadequately-compensated in money, notably in the cases of jurors and witnesses, whose fees, as allowed by law, in many instances. fall short of their actual expenses, to say nothing of the value of their time, their, trouble and losses in business. Their compensation comes mainly from [570] -the services they' fender the county in the1 interest • of law, order-'and good government; and so does the physician’s or surgedn’s, when- he - bestows: his -skill in the -duties'required of him in holding inquests; in the inter■est of the discovery of unlawful homicides’ and the punishment of the pefpetrator-s.of tliehi'. The plaintiff as appears, received the fee' allowed -him by law, and was -entitled to no more:' ■ ■ ■ ' ■« ■ On the agreed statement'-of facts, the 'court below, •trying the - causé 'thereon,1 very properly rendered a Judgment for defendant:' Affirmed. ■