Autauga County v. Davis

32 Ala. 703

• Court: Supreme Court of Alabama
• Decided: June 15, 1858
• Status: Published

Opinion

RICE, C. J.

The first section of the act to provide for the indigent sick in Autauga and certain other counties, approved Feb. 10, 1852, (Pamph. Acts of 1851-2, pp. 429, 480,) provides, that when any person is sick in the counties of Autauga or Coosa, and in such destitute condition as to demand public charity and prompt attention, such person, during sickness, shall be a public charge on the county. The third section provides, that in the event of sickness, as contemplated in the first section, “the commissioners of revenue and roads in the county where such sickness * * occurs must order the county treasurer to pay reasonable expenses for such sickness * * to the party incurring the same, upon presentation of the account, verified by the affidavit of any responsible witness not- directly interested therein.”

There is no other pi’ovision in the act as to the remedy for persons claiming under it. But the appellant contends, that the third section, which is above substantially set forth, so far as it relates to this case, provides a remedy for the right given by the act, and that persons claiming under the act are confined to that remedy. We admit the principle, that where a new right, or the means of acquiring it, is conferred, and an adequate remedy for its denial or invasion is given by the same statute, parties claiming under the statute are confined to the statutory redress. — Smith v. Lockwood, 13 Barb. Sup. Ct. Rep. 209. But that principle does not govern the present case, because the act of 1852, above cited, does not give an adequate remedy for the denial or invasion of the right given by it. True, it makes it the duty of the commissioners of revenue and roads, when its provisions are complied with, to order the county treasurer to pay reasonable expenses for such sickness to the party incurring the same. But there it stops. It — that is, the act itself — does not give a remedy for compelling those commissioners to make that order, in the event they fail or refuse to make it; nor does the act provide any mode by which the refusal of the commissioners to make the order can be appealed from, reversed, or set aside. Now, although it be conceded, that the party injured by the refusal to make the order is entitled to a mandamus from the circuit court of the proper county, to compel the commissioners to make the order; yet the mandamus is not given by the act, but by the common law, or the Code. — Tarver v. Commissioners’ Court, 17 Ala. 527. It is clear, therefore, that the act itself does not give an adequate remedy. And as the remedy which it does give is, not an adequate one, it is merely cumulative, and the party who has a right under that act is not confined to that remedy, but may resort to the means of redress given by the common law, or a general statute, in similar cases. — 10 Pick. R. 383; Garnett v. Roper, 10 Ala. Rep. 842.

[2.] The Code (§ 763) expressly authorizes a county to sue or be sued in a court of record. If, upon the facts or matter stated in the complaint, the plaintiffs have a right to recover against the county, the complaint is good under the Code. — Code, §§ 2129, 2130, 2227, 2228; Pickens v. Oliver, 29 Ala. 528. And we think it too clear for argument, that, upon the facts or matter stated in the complaint, the act of 1852, above cited, gives the plaintiffs a right to recover against the county. There was no error in overruling the demurrer to the complaint.

The substance of the complaint is proved by the evidence, if the evidence is believed. The court, therefore, properly refused to give the charge asked by the defendant.

[8.] The presentation of the claim or demand to the court of county commissioners, within twelve months after it accrued, was, under sections 775 and 2141 of the Code, essential to the plaintiffs’ right to maintain a suit for its recovery; and as it was essential, and yvas averred, there could not be error in allowing the averment to be proved. The papers offered for that purpose, were properly admitted.

4. Upon the authority of previous decisions of this court, we hold, that there was no error in allowing the witness I). McNeill to testify that Milage Marcus was “in such destitute condition as to demand public charity and prompt attention.” It is not the statement by the witness of his mere opinion, nor of a legal conclusion-; but is, at most, the statement of a conclusion of fact, which, from its very nature, the witness was authorized to make. — Stanley v. The State, 26 Ala. 26; Walker v. Forbes, 25 Ala. 139; Royall v. McKenzie, 25 Ala. 363; Iverson v. Nelson, 24 Ala. 9.

[5.] Upon the authority of the former decisions of this court, we hold, also, that there was no error in admitting the declarations of the plaintiffs, as testified to by the witness Monroe.- — -Pitts v. Burroughs, 6 Ala. 733; Olds v. Powell, 7 Ala. 652.

Judgment affirmed.