came in effect the title of the first-named act (Lewis v. State, 123 Ala. 84, 26 South. 516), a title giving ample notice of all the Legislature has done on the subject of public roads, bridges, and highways in this state (State ex rel. Mobile v. Board of Revenue, 180 Ala. 489, 61 South. 368).

by appellants, is patently not in point. And so is Pillans v. Hancock, 203 Ala. 570, 84 South. 757. In the case before us we are clear to the conclusion that the word "further" in the title of the act had and has no other significance than that the Legislature would proceed again to legislate on the subject of roads, bridges, and highways, and that appellants' contention on this point is sustained by neither reason nor authority.

This brings us to a consideration of the facts shown by the sworn bill and answer, and the affidavits offered on the hearing of the motions to dissolve and discharge the temporary writ of injunction previously granted by an order of the court.

way in the neighborhood of property owned by the other, thereby advancing their respective individual interests at the public expense; one of such proposed highways being the Greene county project. It will suffice to say of this charge that there is no evidence to sustain it.

It is entirely clear that by the use of the word "further" in the title of the act of October 31, 1921, some sort of reference to the act of September 30, 1919, was intended, the title of which, with some elaboration of details, covered the same general subject. The question still is whether the Legislature, under the title "to provide further," had the constitutional power to provide a highway 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 microscope, unless, indeed, upon rare occasion such examination may suffice to bring them into proper correlation with established principles of government. In this case it may be conceded that, as ordinarily used, “further" means in addition to, moreover, furthermore, and does not involve the idea of inconsistency or repugnancy; but, on the other hand, it does not involve the notion of complete consistency; it may be used to introduce a negation or qualification of some precedent matter. Jones v. Creveling, 19 N. J. Law, 133. And certainly it would impress the man in the street, as it does us, that the court would proceed upon an exceedingly narrow and unsubstantial ground to declare the title in question, otherwise of great, but permissible, generality, a restrictive title, preserving intact every particular of previous legislation-a wholly unsatisfactory reason upon which to predicate the constitutional invalidity of a legislative act amending, changing, reforming in some respects, the provisions of a precedent act on the same subject. The proposition is without authority. Jones v. Creveling, which we have already referred to; Hitchings v. Van Brunt, 38 N. Y. 335; Blair v. Scribner, 67 N. J. Eq. 583, 60 Atl. 211; Shaw v. Southland Ins. Co. (Tex. Civ. App.) 185 S. W. 915; and Galpin 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. 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 "further" The argument seems to be that Commissioner in private writings, wills, contracts, etc., Rogers is or will be indirectly interestedaccording 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

[6] It appears that Commissioner Scruggs voted against the location and construction of the Greene county project-this for the sole reason, shown by his affidavit, that the proposed highway would not receive federal aid. With the sufficiency of that reason we are not now concerned. But this action of Commissioner Scruggs left the location and construction of the highway in question to depend upon the concurrence of Commissioners Rogers and Suttle. And in this connection it is alleged that Commissioner Rogers was disqualified to act by reason of interest. His interest is alleged to lie in the fact that he owns a large body of land in Sumter county, the value of which will be greatly increased by the location and construction of the proposed highway. The statute (section 112, p. 375) provides that

"No member of the state highway commission ** shall be either directly or indirectly interested in any contract or agreement for the construction or maintenance of any road or bridge in this state. ** **

No

(100 So.)

nance 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 71⁄2 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 substantial ground. of Sumter and Greene counties have given their formal official approval to that route. And the evidence appears to support the assertion that a majority of the people of the two counties prefer a highway constructed along the route selected by the commissionthis, most likely, upon consideration that the people who live along the Boligee route have the convenience of a parallel railroad im

[9, 10] Appellants' bill and the proof in the shape of ex parte affidavits submitted at the hearing draw a comparison between the Gainesville Mt. Hebron - Clinton route and that by way of Epes and Boligee. The record affords no information as to other possible routes. The averment in effect is that the state highway commission, in locating the

mediately at hand, and that at least four [ Alabama.
much-traveled public roads lead into the road
from Gainesville to Eutaw, which is itself the
most traveled road in Greene county.

Following adverse rulings on pleading, plaintiff takes nonsuit and appeals. Reversed, rendered, and remanded.

The first count of the complaint avers: "That on, to wit, the 5th day of February, 1924, the defendant Seaboard Air Line Railroad Company was in the county of Montgomery and state of Alabama, engaged in the business of operating a railroad, and one of its railroad tracks in said county crossed a certain public road or highway at or near Cecil, Ala., and the defendant Orange Crush Bottling Company of Alabama was then in said county engaged in the business of running or goods, wares, or merchandise. That the deoperating a truck or automobile in hauling its fendants then and there so negligently conducted their respective businesses that by reason thereof, and as the proximate result and.

These things considered, we think it impossible to pronounce judgment to the effect that the state highway commission in electing to locate the highway between Livingston and Eutaw by way of Gainesville, Mt. Hebron, and Clinton, has so far abused their discretion in the premises as to afford a reasonable inference of fraud or corruption, or, indeed, that they have abused it at all. That the proposed route is not the most direct, is conceded, of course, on all hands; but, under the amendment, the commission has the right to select "the most feasible route by a permanent road, having due regard to the public welfare." On the proof submitted, we think consequence thereof, an engine or locomotive it is impossible to affirm that the route selected is not the most feasible-practicable-having due regard to the public welfare. Our conclusion, therefore, is that the trial court very correctly ruled when it decreed a dissolution of the temporary injunction, previously issued on ex parte application, whereby further proceedings of the state highway commission, looking to the construction of the highway in question, had been halted to await the further judgment of the court. Affirmed.

en said railroad track struck or collided with said truck or automobile, which said truck or automobile was then and there crossing said railroad track at said public road crossing, and by reason thereof, and as the proximate result and consequence thereof, plaintiff, who was then and there a pedestrian on said public road, was hit or struck by said truck, or some of the contents of said truck, and was violently thrown to the ground and received personal injuries, in this, to wit," etc.

ANDERSON, C. J., and GARDNER and fendant Seaboard Air Line Railroad Company MILLER, JJ., concur.

1

HALL v. SEABOARD AIR LINE R. CO. et al. (3 Div. 671.)

(Supreme Court of Alabama. June 5, 1924. Rehearing Denied June 30, 1924.)

1. Railroads 344 (1)-Counts for injuries at crossing by joint wrongdoers held to plead duty and breach with sufficient certainty.

In action for injuries to pedestrian, struck by truck or contents, following collision between truck and train at crossing, counts held to plead the railroad's and truck owners' duty toward pedestrian, and breach thereof, with sufficient certainty.

2. Railroads 266-Railroad and truck own er held jointly and severally liable for injuries to pedestrian.

Where pedestrian was struck by truck or contents, following collision with train at crossing, and negligence of railroad and truck owners united or concurred in proximately causing collision, they were jointly and severally liable, notwithstanding absence of common design, concert of action, or joint negligence.

Appeal from Circuit Court, Montgomery County; Walter B. Jones, Judge.

The second count of the complaint avers: "That on, to wit, February 5, 1924, the dewas in the county of Montgomery, state of Alabama, engaged in the business of operating a railroad, and one of its railroad tracks crossed a certain public road in said county at or near Cecil, Ala., and on, to wit, said day and date, in said state and county, there was a collision on said public road crossing between a locomotive on said railroad track and a truck on said public road; and plaintiff further avers that then and there the said locomotive was being operated by the defendant Seaboard Air Line Railroad Company, or its agent or agents, servant or servants, employee or employees, while acting within the line or scope of his or their employment, and that the said truck was then and there being operated by the defendant Orange Crush Bottling Company of Alabama, or its agent or agents, servant or servants, employee or employees, while acting within the line or scope of his or their employment; and plaintiff avers that by reason thereof, and as the proximate result and consequence of said collision, plaintiff, who was then and there a pedestrian on said public road, was violently struck by said truck, or some of the contents of said truck, and received personal injuries in this, to wit, ** and plaintiff further avers that said collision was proximately caused and he received personal injuries as the proximate result and consequence of the negligence of the defendants, in this: The defendants, or their agents, servants, or employees, while acting within the caused said engine or locomotive and said line or scope of their employment, negligently truck to collide as aforesaid on said public

Action for damages by E. O. Hall against the Seaboard Air Line Railroad Company and the Orange Crush Bottling Company of road crossing."

(100 So.)

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

Steiner, Crum & Weil and Ball & Beckwith, all of Montgomery, for appellees.

tion or unity of purpose, but the acts are concurrent as to place and time, and unite in setting in operation a single destructive or dangerous force, which produces the injury."

In 1 Cooley on Torts (3d Ed.) p. 247, note 6, we find this:

the negligence of two or more persons concur in producing a single, indivisible injury, then although there is no common duty, common desuch persons are jointly and severally liable, sign, or concert action."

This appears to be the general rule gathered from the text-writers, based on the opinions of the different courts; and it has met with approval of this court.

MILLER, J. This is a suit filed by plaintiff, E. O. Hall, the appellant, against the 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 for personal injuries alleged to have been sustained by him while walking along a public road. The public road crossed the railroad track of this railroad company. The engine of the railroad company collided with a motor truck of the bottling company as each was crossing, one the track and the other the public road, at this public road crossing, and by reason thereof the plaintiff was injured by being struck or hit by the truck or some of the contents of the truck. There are two counts in the complaint. The defendants separately demurred to each count, because neither count showed a joint liability of the defendants, and there was a misjoinder of parties defendant, and on other grounds. Demurrers of the defendants to each count were sustained by the court. On account thereof plaintiff took a nonsuit, the cause was dismissed, plaintiff was taxed with the court cost, and this appeal by plaintiff is prosecuted from that judgment. The sustaining by the court of the demurrers of the defendants to each count of the complaint are the errors assigned.

[1] Each defendant owed the plaintiff the duty to refrain from negligently injuring him while walking in or along the public road at or near this public road crossing, and each count shows the duty and breach of it with sufficient certainty by facts under our system of pleading. Michie, Dig. vol. 10, § 56, p. 595. Are the defendants jointly liable under the averments of each count of the complaint, is the real question presented by the demurrers. Each count alleges that the defendants or their respective agents, while acting within the line of their respective employments, so negligently conducted their respective businesses that by reason thereof the engine of one and the truck of the other collided at this public road crossing, and as a proximate result or consequence of the collision the plaintiff was injured by being struck or hit by the truck or some of its contents, and he was a pedestrian in this public road at the time. In 29 Cyc. p. 565, note 69, we find the following:

"When the injury is the result of the concurring negligence of two or more parties they may be sued jointly or severally."

In 26 R. C. L. p. 764, § 13, note 9, we find: "There is a class of cases in which the defendants are jointly and severally liable. although they are several and not joint tort

This court has written on this subject. The appellant, plaintiff, in drawing these counts, appears to have followed in part, at least, a count in Alabama Power Co. v. Talmadge, 207 Ala. 86, 90, 93 South. 548, 552, held sufficient by this court under demurrer, in which the court wrote:

"The complaint, as amended, consisting of a single count, does not allege community of purpose between these appellants and the plumbing company; does not allege joint negligence; but it does show that at the moment of the injury to plaintiff's intestate the several acts of commission and omission charged to the defendants converged to the production of that injury. All the original parties defendant are thus alleged to have been guilty of concurrent negligence, and were liable in a joint action, though they had no common purpose and there was no concert of action. 1 Jaggard on Torts, And in such case the parties pp. 212, 213. defendant may be held responsible jointly or severally for the injury."

In McCoy v. L. & N. R. R. Co., 146 Ala. 337, 40 South. 107, this court stated this rule on this subject:

"A rational rule, deduced from the authorities supra, would seem to be that, 'where one has received an injury at the hands of two or more persons acting in concert, or acting independently of each other, if their acts united in causing a single injury, all of the wrongdoers are liable for the damages occasioned by the injury.'"

In Home Tel. Co. v. Fields, 150 Ala. 315, 43 South. 714, the same idea is thus expressed with approval by this court:

"If damage has resulted directly from concurrent, wrongful acts of two persons, each of them may be counted on as the proximate cause, and the parties held responsible jointly or severally for the cause."

The appellee insists the court below in this ruling on the demurrers followed the opinion in Richmond, etc., R. R. Co. v. Greenwood, 99 Ala. 501, 14 South. 495, and that it states a rule contrary to the principles herein before 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.

It results that the trial court erred in sustaining the demurrers of the defendants to each count of the complaint; they should have been overruled, and a decree to that ef- equity side of court is not reviewable on apfect will be entered here. The judgment is reversed, and the cause remanded. Reversed, rendered, and remanded.

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 others. From a judgment granting the writ,

MILLER, J. The application for rehearing respondents appeal. Affirmed. is overruled.