페이지 이미지

came in effect the title of the first-named act by appellants, is patently not in point. And (Lewis v. State, 123 Ala. 84, 26 South. 516), so is Pillans v. Hancock, 203 Ala. 570, 84 a title giving ample notice of all the Legisla- South. 757. In the case before us we are ture has done on the subject of public roads, clear to the conclusion that the word “furbridges, and 'highways in this state (State ther" in the title of the act had and has no ex rel. Mobile v. Board of Revenue, 180 other significance than that the Legislature Ala. 489, 61 South. 368).

would proceed again to legislate on the subIt is entirely clear that by the use of the ject of roads, bridges, and highways, and word "further" in the title of the act of Oc- that appellants' contention on this point is tober 31, 1921, some sort of reference to the sustained by neither reason nor authority. act of September 30, 1919, was intended, the This brings us to a consideration of the title of which, with some elaboration of de- facts shown by the sworn bill and answer, tails, covered the same general subject. The and the affidavits offered on the hearing of question still is whether the Legislature, un- the motions to dissolve and discharge the der the title “to provide further," had the temporary writ of injunction previously constitutional power to provide a highway granted by an order of the court. commission of three to perform the offices For one thing, it is charged in effect that theretofore performed by a commission of the Gainesville-Mt. Hebron-Clinton route was twelve. In our opinion the Legislature had located as the result of a corrupt agreement such power-was not, by reason of the word between two members of the state highway "further" in the title of its act or acts, limit- commission, in consideration of which each ed as appellants contend. Courts do not ex- of the two voted for the location of a highamine acts of the Legislature under a mi- way in the neighborhood of property owned croscope, unless, indeed, upon rare occasion by the other, thereby advancing their respecsuch examination may suffice to bring them tive individual interests at the public exinto proper correlation with established prin- pense; one of such proposed highways being ciples of government. In this case it may the Greene county project. It will suffice to be conceded that, as ordinarily used, "fur- say of this charge that there is no evidence ther" means in addition to, moreover, fur- to sustain it. thermore, and does not involve the idea of [6] It appears that Commissioner Scruggs inconsistency or repugnancy; but, on the voted against the location and construction of other hand, it does not involve the notion the Greene county project--this for the sole of complete consistency; it may be used to reason, shown by his affidavit, that the prointroduce a negation or qualification of some posed highway would not receive federal precedent matter. Jones v. Creveling, '19 aid. With the sufficiency of that reason we N. J. Law, 133. And certainly it would im- are not now concerned. But this action of press the man in the street, as it does us, Commissioner Scruggs left the location and that the court would proceed upon an exceed construction of the highway in question to ingly narrow and unsubstantial ground to depend upon the concurrence of Commissiondeclare the title in question, otherwise of ers Rogers and Suttle. And in this connecgreat, but permissible, generality, a restriction it is alleged that Commissioner Rogers tive title, preserving intact every particular was disqualified to act by reason of interest. of previous legislation—a wholly unsatisfac- His interest is alleged to lie in the fact that tory reason upon which to predicate the con- he owns a large body of land in Sumter counstitutional invalidity of a legislative actty, the value of which will be greatly in. amending, changing, reforming in some re- creased by the location and construction of spects, the provisions of a precedent act on the proposed highway. The statute (section the same subject. The proposition is without 1142, p. 375) provides thatauthority. Jones v. Creveling, which we have

"No member of the state highway commission already referred to; Aitchings v. Van Brunt, * shall be either directly or indirectly 38 N. Y. 335; Blair v. Scribner, 67 N. J. Eq. interested in any contract or agreement for the 583, 60 Atl. 211; Shaw v. Southland Ins. construction or maintenance of any road or Co. (Tex. Civ. App.) 185 S. W. 915; and Gal. bridge in this state. pin v. Chicago, etc., 269 Ill. 27, 109 N. E. 713, L. R. A. 1917B, 176—are cited. These cases [7,8] There is no suggestion that any comsupport the proposition that the title of an missioner is directly interested in any conact professing “to provide additional compen-tract or agreement for the construction or sation for the state's attorney," without maintenance of the proposed highway. No more, did not clearly express the purpose to such contract or agreement has been entered reduce the compensation of the state's at- into, nor is there an intimation that any com: torney (Galpin v. Chicago)--which would missioner will be so interested at any time. seem to be clear enough-or that “fürther" | The argument seems to be that Commissioner in private writings, wills, contracts, etc., Rogers is or will be indirectly interested according to its context, may have its strict which, we assume, means personally and meaning as merely "in addition to." Leslie financially interested-in any contract or V. Bracken, 154 Ala. 151, 45 South. 841, cited agreement for the construction or mainta

[ocr errors][ocr errors][ocr errors]

(100 So.) Dance of the highway in dispute, because he first-named route between Livingston and owns large tracts of land, the value of which Eutaw in preference to the other, was guilty will be greatly increased by the proposed lo of an abuse of discretion tantamount to cation. This, we think, is not the indirect in- fraud. Obviously, the statute commits the terest prohibited by the act. It might in location of the highways to be constructed some circumstances constitute an interest in and maintained by it to the discretion of the the location of a highway, but not an inter-commission. The location of such highways est, direct or indirect, in a contract or agree- is not a function of the courts. In that matment for its construction or maintenance ter the commission, as we have before said in within the meaning of the act. But, it is substance, exercises an administrative and said that, on common-law principles, Rogers quasi legislative function which, when free is disqualified to act in the premises by rea- from fraud or corruption, cannot be reviewed son of the interest stated above is incompe- by the courts. Hill v. Bridges, 6 Port. 197; tent to sit as judge in his own case. A suffi- Matkin v. Marengo County, 137 Ala. 155, 34 cient answer is that the state highway com- South. 171; Eutaw v. Coleman, 189 Ala. 164, mission is not a court exercising judicial 66 South. 464, and the other cases cited in functions—it is an administrative board; it Board of Revenue v. Merrill, 193 Ala. 521, 68 exercises also some delegable legislative func-South, 971. We can only give an outline of tions; but it renders no judgments concern- the facts averred and proved. The total dising the rights of parties. In case it becomes tance from Livingston to Eutaw, via Gainesnecessary for the commission to acquire for ville, Mt. Hebron, and Clinton, is approximatethe state a right of way, it must go into the ly 38 miles; via Epes and Boligee the discustomary courts like any other corporation tance is approximately 6 miles less. Each invested with the power of eminent domain. route has its peculiar advantages and disadIts members are not affected by the common- vantages; but, upon the whole, we are unlaw principles which govern the qualification able to see that the cost of construction, per of judges and judicial officers. Foot v. Stiles, mile, greatly differs between the two. But, 57 N. Y. 399. The act mentions but one dis because the Gainesville route will utilize the qualification, and that is exclusive because entire construction from Livingston to without such mention there would be no dis- Gainesville and as well a road already built, qualification. However, such direct individu- from Eutaw to Clinton, whereas the Boligee al pecuniary interest as would disqualify a route would utilize only about 742 miles of judge can by no means be affirmed of Commis- the Livingston-Gainesville construction, the sioner Rogers on the facts shown by the rec-highway proposed by the commission would ord. It is hard to see that he has any per- require about 4 miles less of construction. sonal interest, except in that part of the pro- True, the cost of maintenance must be conposed highway that extends from Livingston sidered. And, as to this, the problem preto Gainesville. He owns his residence in sented to the commission is as follows: It is Gainesville, a small tract of land-160 acres their bounden duty to construct a highway, -in that vicinity, and 7,000 or 8,000 acres of not only between Livingston and Eutaw, but land in Sumter county, the bulk of which lies between Livingston and Carrollton, the coun5 or 6 miles northwest of the town. It seems ty seat of Pickens, and between Carrollton likely that the construction of the highway and Eutaw. Between Livingston and Carfrom Livingston to Gainesville has given him rollton the road to Gainesville--and probabetter access to a railroad and so to a larger bly more of the Greene county project-will market for the products of his land, and this be used; from Eutaw to Carrollton the road consideration, no doubt, other things remain-to Clinton will be used. Presumably after ing equal, has added to the value of his land. due consideration of all the elements of adBut that interest has no effect upon the deci- vantage and disadvantage—but, whether so sion of this cause, for so much of the pro- or not, the bona fides of its judgment is beposed highway as lies between Livingston yond impeachment-the Legislature, Sepand Gainesville was constructed at the joint tember 10, 1915 (Acts 1915, p. 366), adopted expense of federal, state, and (Sumter) coun- the route now adopted by the commission as ty governments before he became a member a part of a state trunk road No. 7, "beginning of the commission, while, as for the road to at the city limits of Tuscaloosa and extending Eutaw, it would be hard to differentiate his southward to Eutaw, Gainesville to Livingsindividual interest from that of the general ton.” So likewise the commissioners' courts public on any sụbstantial ground.

[ocr errors][ocr errors]

of Sumter and Greene counties have given (9, 10) Appellants' bill and the proof in the their formal official approval to that route. shape of ex parte affidavits submitted at the And the evidence appears to support the ashearing draw a comparison between the sertion that a majority of the people of the Gainesville - Mt. Hebron - Clinton route and two counties prefer a highway constructed that by way of Epes and Boligee. The rec- along the route selected by the commissionord affords no information as to other possi- this, most likely, upon consideration that the ble routes. The averment in effect is that people who live along the Boligee route have the state highway commission, in locating the the convenience of a parallel railroad im



mediately at hand, and that at least four ( Alabama. Following adverse rulings on much-traveled public roads lead into the road pleading, plaintiff takes nonsuit and appeals. from Gainesville to Eutaw, wbich is itself the Reversed, rendered, and remanded. most traveled road in Greene county.

The first count of the complaint avers: These things considered, we think it impossible to pronounce judgment to the effect that

"That on, to wit, the 5th day of February, the state highway commission in electing to 1924, the defendant Seaboard Air Line Rail

road Company was in the county of Montlocate the highway between Livingston and gomery and state of Alabama, engaged in the Eutaw by way of Gainesville, Mt. Hebron, business of operating a railroad, and one of and Clinton, has so far abused their discre- its railroad tracks in said county crossed a tion in the premises as to afford a reasonable certain public road or highway at or near Ceinference of fraud or corruption, or, indeed, cil, Ala., and the defendant Orange Crush Botthat they have abused it at all. That the tling Company of Alabama was then in said proposed route is not the most direct, is con- county engaged in the business of running or ceded, of course, on all hands; but, under operating a truck or automobile in hauling its the amendment, the commission has the right fendants then and there so negligently con

goods, wares, or merchandise. That the de. to select "the most feasible route by a perma- ducted their respective businesses that by reanent road, having due regard to the public son thereof, and as the proximate result and welfare." On the proof submitted, we think consequence thereof, an engine or locomotire it is impossible to affirm that the route select- en said railroad track struck or collided with ed is not the most feasible-practicable-hay- said truck or automobile, which said truck or ing due regard to the public welfare. Our

automobile was then and there crossing said

railroad track at said public road crossing, and conclusion, therefore, is that the trial court by reason thereof, and as the proximate revery correctly ruled when it decreed a dis- sult and consequence thereof, plaintiff, who solution of the temporary injunction, previ. was then and there a pedestrian on said pubously issued on ex parte application, whereby lic road, was hit or struck by said truck, or further proceedings of the state highway some of the contents of said truck, and was commission, looking to the construction of violently thrown to the ground and received the highway in question, had been halted to personal injuries, in this, to wit,” etc. await the further judgment of the court.

The second count of the complaint avers: Affirmed.

"That on, to wit, February 5, 1924, the deANDERSON, C. J., and GARDNER and fendant Seaboard Air Line Railroad Company MILLER, JJ., concur.

was in the county of Montgomery, state of Alabama, engaged in the business of operating a railroad, and one of its railroad tracks cross

ed a certain public road in said county at or HALL V, SEABOARD AIR LINE R. CO.

near Cecil, Ala., and on, to wit, said day and et al. (3 Div. 671.)

date, in said state and county, there was a col

lision on said public road crossing between a (Supreme Court of Alabama. June 5, 1924. locomotive on said railroad track and a truck Rehearing Denied June 30, 1924.) on said public road; and plaintiff further avers

that then and there the said locomotive was 1. Railroads Cms 344(1)-Counts for injuries being operated by the defendant Seaboard Air

at crossing by joint wrongdoers held to plead | Line Railroad Company, or its agent or agents, duty and breach with sufficient certainty. servant or servants, employee or employees,

In action for injuries to pedestrian, struck while acting within the line or scope of his by truck or contents, following collision be- or their employment, and that the said truck tween truck and train at crossing, counts held was then and there being operated by the deto plead the railroad's and truck owners' duty fendant Orange Crush Bottling Company of toward pedestrian, and breach thereof, with Alabama, or its agent or agents, serrant or sufficient certainty.

servants, employee or employees, while acting 2. Railroads C266-Railroad and truck own- ployment; and plaintiff avers that by reason

within the line or scope of his or their emer held jointly and severally liable for inju- thereof, and as the proximate result and conries to pedestrian.

sequence of said collision, plaintiff, who was Where pedestrian was struck by truck or then and there a pedestrian on said public contents, following collision with train at road, was violently struck by said truck, or crossing, and negligence of railroad and truck some of the contents of said truck, and reowners united concurred in proximately ceived personal injuries in this, to wit, * causing collision, they were jointly and sever- and plaintiff further avers that said collision ally liable, notwithstanding absence of common was proximately caused and he received perdesign, concert of action, or joint negligence, sonal injuries as the proximate result and

consequence of the negligence of the defendAppeal from Circuit Court, Montgomery ants, in this: The defendants, or their agents, County; Walter B. Jones, Judge.

serpents, or employees, while acting within the Action for damages by E. 0. Hall against caused said engine or locomotive and said

line or scope of their employment, negligently the Seaboard Air Line Railroad Company truck to collide as aforesaid on said public and the Orange Crush Bottling Company of road crossing.”

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


[ocr errors]

(100 So.) Hill, Hill, Whiting, Thomas & Rives, of, feasors, as where there is no concert of acMontgomery, for appellant.

tion or unity of purpose, but the acts are conSteiner, Crum & Weil and Ball & Beck- | current as to place and time, and unite in setwith, all of Montgomery, for appellees.

ting in operation a single destructive or dan

gerous force, which produces the injury." MILLER, J. This is a suit filed by plain

In 1 Cooley on Torts (3d Ed.) p. 247, note tiff, E. 0. Hall, the appellant, against the 6, we find this: Seaboard Air Line Railroad Company, a cor “The weight of authority will, we think, supporation, and Orange Crush Bottiing Compa- port the more general proposition that, where ny of Alabama, a corporation, for damages the negligence of two or more persons concur for personal injuries alleged to have been in producing a single, indivisible injury, then sustained by him while walking along a pub- such persons are jointly and severally liable, lic road. The public road crossed the rail- although there is no common duty, common de

sign, or concert action." road track of this railroad company.

The engine of the railroad company collided with This appears to be the general rule a motor truck of the bottling company as gathered from the text-writers, based on the each was crossing, one the track and the opinions of the different courts; and it has other the public road, at this public road met with approval of this court. crossing, and by reason thereof the plaintiff This court has written on this subject. was injured by being struck or hit by the The appellant, plaintiff, in drawing these truck or some of the contents of the truck. counts, appears to have followed in part, at

There are two counts in the complaint. least, a count in Alabama Power Co. v. TalThe defendants separately demurred to each madge, 207 Alạ. 86, 90, 93 South. 548, 552, count, because neither count showed a joint held sufficient by this court under demurrer, liability of the defendants, and there was a | in which the court wrote: misjoinder of parties defendant, and on other grounds. Demurrers of the defendants to single count, does not allege community of pur

“The complaint, as amended, consisting of a each count were sustained by the court. On

pose between these appellants and the plumbaccount thereof plaintiff took a nonsuit, the ing company; does not allege joint negligence; cause was dismissed, plaintiff was taxed with but it does show that at the moment of the inthe court cost, and this appeal by plaintiff jury to nlaintiff's intestate the several acts of is prosecuted from that judgment. The sus commission and omission charged to the detaining by the court of the demurrers of the fendants converged to the production of that defendants to each count of the complaint injury. All the original parties defendant are

thus alleged to have been guilty of concurrent are the errors assigned.

regligence, and were liable in a joint action, [1] Each defendant owed the plaintiff the though they had no common purpose and there duty to refrain from negligently injuring him was no concert of action. 1 Jaggard on Torts, while walking in or along th public road pp. 212, 213. And in such case the parties at or near this public road crossing, and each defendant may be held responsible jointly or count shows the duty and breach of it with severally for the injury." sufficient certainty by facts under our system of pleading. Michie, Dig. vol. 10, $ 56,

In McCoy v. L. & N. R. R. Co., 146 Ala. p. 595. Are the defendants jointly liable un- 337, 10 South. 107, this court stated this rule der the averments of each count of the com

on this subject: plaint, is the real question presented by the "A rational rule, deduced from the authoridemurrers. Each count alleges that the de- ties supra, would seem to be that, 'where one fendants or their respective agents, while has received an injury at the hands of two or acting within the line of their respective em.

more persons acting in concert, or acting indeployments, so negligently conducted their pendently of each other, if their acts united

in causing a single injury, all of the wrong-
respective businesses that by reason thereof
the engine of one and the truck of the oth-doers are liable for the damages occasioned by

the injury.'
er collided at this public road crossing, and
as a proximate result or consequence of the

In Home Tel. Co. v. Fields, 150 Ala. 315, collision the plaintiff was injured by being 43 South. 714, the same idea is thus exstruck or hit by the truck or some of its con

pressed with approval by this court: tents, and he was a pedestrian in this public "If damage has resulted directly from conroad at the time. In 29 Cyc. p. 565, note 69, current, wrongful acts of two persons, each of we find the following:

them may be counted on as the proximate

cause, and the parties held responsible jointly "When the injury is the result of the concur or severally for the cause,” ring negligence of two or more parties they may be sued jointly or severally."

The appellee insists the court below in this

ruling on the demurrers followed the opinion In 26 R. C. L. p. 764, § 13, note 9, we find: in Richmond, etc., R. R. Co. v. Greenwood, 99 "There is a class of cases in which the de

Ala. 501, 14 South. 495, and that it states a fendants are jointly and severally liable. al

rule contrary to the principles hereinbefore though they are several and not joint tort- declared. The principle discussed in that


case is declared dicta therein. It is con- prayer could be disregarded without affecting trary to the present holding, and is unsound result. and disapproved.

4. Mandamus mm 14(2)-Demand on president [2] These counts aver no facts showing a of revenue board to record allowance of claim common design, or a concert of action, or held sufficient, joint negligence by the defendants which Demand on president of board of revenue proximately caused the injury; but they to record allowance of claim and to expunge each aver the negligence of each defendant subsequent disallowance held sufficient demand united or concurred in proximately causing on board, and it was not necessary to repeat the collision, and by reason of the collision demand to every member, especially when it

would have been unavailing. the injury was inflicted on the plaintiff. Each defendant is charged by allegation in each 5. Mandamus Omw 14(1)-Demand for performcount to have been guilty of concurrent neg.

ance of legal duty not necessary before suit. ligence, which proximately caused the colli

Demand for performance of legal duty to sion and by reason thereof the plaintiff was

record allowance of claim specifically enjoined injured. Under the averments of each count

on board of revenue by law need not be made

before suit. the defendants are jointly and severally liable for the injury. Authorities supra.

6. Appeal and error 969_Court's refusal to It results that the trial court erred in

transfer case to equity side of court not re

viewable. sustaining the demurrers of the defendants to each count of the complaint; they should equity side of court is not reviewable on ap

Trial court's refusal to transfer case to have been overruled, and a decree to that ef

peal, fect will be entered here. The judgment is reversed, and the cause remanded.

Appeal from Circuit Court, Monroe Reversed, rendered, and remanded.

County; John D. Leigh, Judge.

Petition for mandamus by C. L. Hybart ANDERSON, C. J., and SAYRE and and another against M. Mc. Fountain, as GARDNER, JJ., concur.

Judge of Probate and ex officio president of

the Board of Revenue of Monroe County, and On Rehearing.

others. From a judgment granting the writ, MILLER, J. The application for rehearing respondents appeal. Affirmed. is overruled.

The original petition was filed on August All the Justices concur.

16, 1922, by the appellees, Hybart and Hare, against M. Mc. Fountain, as judge of probate, and as ex officio president of the board of

revenue of Monroe county. It showed that FOUNTAIN, Judge of Probate, et al. v. STATE petitioners were employed by said board of ex rel. HYBART et al. (1 Div. 308.)

revenue as attorneys to perform professional

services in connection with the calling of a (Supreme Court of Alabama. June 12, 1924. bond issue election and the proceedings thereRehearing Denied June 30, 1924.)

under for the issue and sale of bonds; that 1. Counties 53Mandamus em 101Proper petitioners performed said services, and on

remedy to compel allowance of claim by coun. May 9, 1922, presented and filed with said ty board of revenue to be recorded on minutes. board their itemized and sworn claim for

Under Code 1907, 8 3314, it is mandatory compensation therefor, in the sum of $2.500; duty of probate judge as president of county that on said date, at a regular session of the board of revenue to record allowance of claim, board, said claim was audited and allowed, and as record is only evidence of claimant's le- and three of the four members of the board gal rights mandamus lies to compel recording indorsed on said claim the word, "Allowed," of allowance, evidenced by written memorial, and signed their names thereto; and that the though board has attempted to rescind action said board thereupon adjourned sine die, and and disallow claim.

the term was closed. It was further shown 2. Mandamus 153—Petition to compel re- that thereafter petitioners demanded of the

cording of allowance of claim by revenue respondent Fountain that he issue to them a board held properly amended to include all warrant on the county treasurer directing members of board.

him to pay to them the amount so allowed, Amendment of mandamus petition against probate judge as such and as president of board but that he had refused to do so; and, fur. of revenue to compel recording of allowance of ther, that he had not registered petitioners claim by board held properly allowed to bring claim as required by sections 146 and 147 of in other members of board.

the Code of Alabama. The prayer was for 3. Mandamus F. 163–Prayer to expunge disal. an alternative writ of mandamus, command

lowance of claim from record of board of ing the respondent to register petitioners revenue held not to make petition demurrable. claim as required by law, and to forth with

Petition for mandamus to compel recording issue to them a warrant upon the county of allowance of claim by revenue board was not treasurer for the amount allowed by the demurrable because it prayed as ancillary rem-board. edy to have board's subsequent disallowance On August 19, 1922, the alternative writ, of claim expunged from record, since such reciting the above facts, was issued and duly

« 이전계속 »