The Daily clarion. [volume] (Jackson, Miss.) 1866-1888, 1867-04-13

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"MAxImLIAN,"
DECISIONS OF THE HIGH COURT
ERRORS AND APPEALS. 4
OCTOBER TERM, 1866.
Sims, Sutton and Dudley,
| 94S7 vs.
/ The Board Of Police Of Carroll Co.
Opinion ofthe Court delivered by Justc,
Handy.
This action was brought by the plaintiff in
| error, who were mail contractors, to recover
| damages sustained by them by reason OF a
bridge and public highway ia Carroll county
being out Of repair
The declaration consists of four counts, The
| first and fourth are on account of injuries done
to the plaintiffs stage horses, by their falling
| through the bridge. which was not kept in re-
/ pair. The second il for expense occasioned by
having to transport the mail across the creek
where the bridge was, by other means than the
| bridge. The third is for loss sustained by them
| in failing to make regular trips, which was
caused by the public road over which they had
| to pass being permitted tn remaino out of repair
for the period ofthree months. 1t alleges that
Il statement of the damages sustained had been
made out and presented to the defendants rs q
| claim against the county amounting to 81 800,
which is filed with the declaration, but that it
| was not allowed.
| The defendants pleaded to the first, second
and fourth counts, special plea, alleging, in
| substaI &c, that they had made contract with
| one 0Neil for the building of the bridge in
question for a sum of money which they had
paid him, who had entered into bond, with
| good security, conditioned to build the bridge
and keep it in good repair for the space Of five
years, which term had not expired ut the time
of the alleged grievances 10 the third count,
they pleaded, that, at the time prescribed by
law next before the happening Of the alleged
grievance, they appointed suitable and proper
oyerseers of the road in question, and assigned
to them to work on said road, competent
number of persons liable by law to work on
public roads, keep said road in good repair,
and if said road was out of repair, as alleged,
it was the fault of said oyerseers. To these
pleas, the plaiHtiffs filed demurrer,which was
oyetruled, and leave given to reply; which
they declined to do; and therefore judgment
was rendered for the defendants.
The question arising upon the record is,
whether the Board of Police is liable for the
damage sustained by the plaintiffs, in the state
offacts shown by the above pleas.
The Boards of County Police in this State,
are in certain respects, municipal corporations,
charged with the duty of making provisions for
the building of bridges and the making ofroads
and for keeping them in repair in their respec-
ys t divide Gle f public roads IN their re-
spectye counties, into convenient districts, and
to appoint and direct what persons shall work
OIL each road, and to appoint annually one
overseer Of the roads for each district. This
overseer is compelled, under very stringent
penalties, to serve as such; and ample proyi-
sions are made for securing the attendance and
servicts of the persons subject to work at the
times which he may appoint and for the num-
Der Of days prescribed by the statute; which
are, for the most part, sufficient for the proper
performance of the duty. Rev. Code 173, arts.
IL, IL, IA, II, Is, 81 1t is made the duty of the
oVerseer TO keep the roads within his district i'm
good repair. and, on his failure to do so for |
more than ten days, unless hindered by extreme |
PAD weather or other unavoidable cause, he is |
liable to indictment and fine. Ib. 600, art 1872. |
lie Is required to put up mile-posts and sign
boards, showing the distance to the court house |
Or principal town, for the direction of travel
ers, under a penalty; and to make semi-annual
reports to the Board Of Police of his county, of
,he cont ition of the road under his charge. and
'ull particulars of his acts as overseer, under a
penalty.
From all these provisions 1t is plain that the
iuty Of working the roads and keeping them in
rood repair is committed by law, to the over
eer Of roads in each county.
1t is also provided, that the Board Of Police
hall contract for the building of any bridge,
md Tor keeping it in repair, which may be
necessary, and which the Overseer of the road
annot conveniently make with the labor ofthe
ands under his charge. Rev. Code ITS, art.
8. And it is likewise clear, that, when any
UGH bridge is built under such contract, and
arty becomes bound to keep it in repair for a
lated period Of time, the duty oil keeping it in
epair is committed to such party, who thereby
ecomes the party liable to all persons who I
lay sustain damage by the nOn-performance s
his duty.
Private corporations are responsible for the S
'rtious acts Of their agents. But generally .
lis is not the case with municipal corpora i,
ons; and especially is it not so where the per- :,
ms have been appointed by Incorporation in II
)edience to statutory provisions, and where
cir duties are prescribed by law, with penal
rs for their non-performance. In such cases, :
c duty OF the person is to the public and not b
the corporation which appointed: he is a o,
lblic servant and not the agent Of the corpo- !.
ton. He is the person to whom the duty IL
tended to be performed is committed By IGlo. I'll
he duty OF the corporation or civil tribunal is n
appoint the person who shall become re- ~
onsble 10 the pdhlic for the performance of D
e particular pubic service; and and when III
at duty is performed by the corporation, in =,
cd faith, and as required by law, il has per- Vi
med its office. and the person appointei be- w
mes mes. eaargeabe with the duties ofthe place ri
Police, on good cause shown. And this, we
nk, is very clearly the rule applicable to the
ards ofPolice in relation 10 the appointment mi
oyerseers Of the roads, and to contracts made of
the building and repair Of bridges like the ma
! involved IN this case. No.
n such cases, party aggrieved by reason ras
ne default OF an overseer or contractor, ~
.hout justification, has a clear remedy ~. ne
Inst the person who has oecasioned the in VIC
y, and who should, in justice, be responsible POI
II, directly to the party injured. For aught emf
appears, this remedy might have been e.
ually pursued against those persons in this r
?; ana, Va addition TO the reasons above or
ed, this course commendsitself as the prop oni
ne, because 10 would prevent circuity Of tba
on, which would take place II a recovery Rol
Q had against the Board Of Police, and ac- Cor
S were then brought by that board against lea,
Oyerseers and the contractors. to recover the of
unit OF such Judgment q ET dra
is said that the plaintid,s demand i'm this D..
1n Is "a claim" within the meaning Of art q
ter, Code 40, which authorizes "and per- ~ ~.
having just claim sgainst any county,' Su ~
Ii the Board Of Police may refuse to allow. Dit
ring suit against such board. Is
is questionable whether this provision of us
contemplates demand against a county Mr..
damages, founded on a tort in and
case. For, II the act complained Of were Of Il
he'd by law, and in accordance with the opin
er duties and powers Of the Board OF PO- and
i Wauld be legal, and no claim or action A.
De predicted OF 10, by party injured By -.
Ind IN Il were unauthorized By law. or In "ne'
ton q the legal duties Of the board. Il
q seem to be a matter Of individual Iiabil- II
= against he cs1p SH "O IN, ~ III. = here
We are Of opinion that this IL not claim larQ
hich the county was liable, for the rea- HE
.murrer ss eorTess md an mus s All red and
-, 49, high
the Boston Courier, Butler i more ~
.uted ont Of the House than In t. All
Of jokes respecting him are scrubbed on Tn
ais Of hotels and public buildings. Inter
e...- =, ~ 800 .lou.e' ana eory
-. p i..sst - elo.ea Eing
tel vas shut up because one Of the r.rer
~ had stolen ali the spoons After Z a.
Of horribly rainy weather, somebody
on the wall At Willaud's Hotel
makes the clouds % black this weekl oof
secauss Butler has stolen their silver Poiutt
\" Seuaf.