"The
bridge which forms the subject-matter of this suit was
built by respondent Converse Bridge Company, under contract
with complainant, according to plans and specifications.
The bridge stood for a period of 12 months, when it fell.
Before its fall the county of Geneva had paid the sum of
$2,480, and had given warrants for the balance of the
contract price, payable at different times. The bill is
filed for the cancellation of these outstanding warrants
and a judgment against respondent Converse Bridge Company
for the money heretofore paid for it; the insistence being
by complainant that there has been a failure of
consideration, in that the bridge fell in so short a period
on account of it being defectively constructed. The bill is
filed under authority of Commissioners' Court v
Moore, 53 Ala. 25, from which I quote the following
language for convenience: 'If it [commissioners'
court] audits and allows a claim not properly and legally
chargeable on the county, or which it has no authority to
allow, it exceeds the power with which it is intrusted, and
as the act of a corporation which is ultra vires is void
so is the action of the court. Or if upon false evidence it
should be lured into the allowance of an unjust claim, or
should allow a claim, which was wanting in consideration,
or the consideration of which failed, the county would not
be estopped from defending against it. The audit and
allowance has no more force and effect than a settlement
between individuals. It is a simple admission by the court
of county commissioners that there is a valid, subsisting
debt due and owing by the county. The admission prima facie
fixes a liability on the county. So if a settlement is had
between individuals, and the one makes his note or bond
payable to another for an ascertained balance, a prima
facie debt is established. In each case the burden of
impeachment rests on him who questions the prima facie
evidence. If, after the audit and allowance, a warrant
pursuant to the statute is drawn on the county treasurer,
it is a mere authority to him to pay. It is nothing more
really than an order on the county itself, the debtor.
Dillon, Munic. Corp. §§ 406-412. When such warrants have
been illegally issued, issued without authority, or when
any just defense exists against the claim which they
evidence, the county may maintain a bill in equity for
their cancellation. And this we incline to regard as the
most appropriate remedy.' If these expressions be taken
for their face value, it can hardly be denied that the bill
in this case is properly filed.
"Counsel
for respondent, however, insist that what is said in this
opinion, from which the above quotations are taken, is and
should be treated as dictum, and is therefore of no binding
force. While it may be true that these expressions were not
absolutely necessary to the decision of that case, yet at the
same time it will be noticed that the distinquished Chief
Justice Brickell, who was the author of the opinion, was
pointing out to the appellant, the county, the appropriate
form in which relief could be had, if in fact any just
defense existed as against the claim evidenced by the
warrants which had been issued. The language certainly was
the most appropriate to that particular case and its status
at that time. Furthermore, the opinion shows that these
expressions are founded on equitable principles and sound
reasoning. After the issuance of the warrant the claim ceases
to be the subject of a suit in the ordinary mode against the
county, and the right to apply to a court of equity for the
cancellation of the warrant is based upon the broad principle
of the inadequacy of legal remedies. The principles announced
in Commissioners' Court v. Moore, supra, have been
reaffirmed by our Supreme Court in the case of
Jeffersonian Publishing Co. v. Hilliard, 105 Ala.
576, 17 So. 112, using these words: 'If the claims which
are audited and allowed are not, as they now appear to be,
legally chargeable on the county, or if there be any just
defense against them, or if they be excessive, when the
warrant issues for their payment, the county may maintain a
bill in equity for its cancellation, or its reduction to the
amount justly due.' Commissioners' Court v.
Moore, 53 Ala. 25. I can find nothing in our decisions
at variance with the principles announced in the case from
which the quotations have been here taken. This court has no
inclination to refuse to follow these decisions, nor have I
been given any satisfactory reason for doing so. Neither
would I have the right, in my opinion, to so refuse, if so
inclined. The bill, therefore, in my judgment, has equity.
"It
is next insisted by respondent that the bill shows that the
commissioners' court of Geneva county accepted the bridge
and audited and allowed the claim, and that this was a
judicial act, binding and conclusive upon it in this case.
The cases of Commissioners' Court v. Moore and
Jeffersonian Pub. Co. v. Hilliard, supra, expressly decide
that the commissioners' court, in the audit and allowance
of claims, is in the exercise of administrative or executive,
not the judicial, power. I think these decisions decisive of
this question, also, adversely to respondent.
"The
evidence in the case is rather voluminous, and I do not see
that any good purpose would be served by an extended
discussion of the testimony, but will merely state my general
observations concerning it, and the conclusions reached.
Practically the entire weight of the bridge rested upon what
is known in this case as the center pier, and the
determination of this controversy hinges upon the fact
whether or not this center pier was properly constructed. The
bridge was to be constructed in a 'good, workmanlike
manner.' One of the allegations of the bill as to
defective construction of this center pier was that one end
of the pier rested upon a part of a fallen pier, which caused
the pier to lean upstream. This to my mind is not
satisfactorily established by the evidence. Only one witness
testifies positively as to this (and this must have been his
opinion only), while several witnesses testify positively to
the contrary. The weight of the evidence, therefore, appears
to be against this theory, and this is disposed of without
further comment.
"It
is next insisted by complainant that the sand was not removed
from inside the casing, and that this sand should have been
so removed, and the piling driven deeper, that the casing
thereby be lowered to better foundation. Quite a number of
witnesses testify that the sand was not so removed, while I
do not find any witnesses to the contrary, except Mr.
Richmond, the superintendent of the work, who states that
sand was removed by the use of long-handled shovels. The
great weight of the evidence, therefore, establishes that the
sand was not removed, and I am also convinced that this
should have been done. The reasons therefor commend
themselves to one's common sense, if, indeed, the
testimony of Richmond that the sand was removed would not be
considered as an admission from him as an experienced
bridgeman that there did not exist a necessity for this to be
done. To this extent it appears this center pier was not
properly constructed. Furthermore, the evidence is without
conflict that while this center pier was in course of
construction, and after a few sections of the casing had been
sunk, the casing was lower on one side than the other and was
leaning upstream, caused from the sand being washed from
under the foundation. It is further well established by the
evidence that sacks of cement were thrown on the outside of
the casing in order to stop this and also level the casing,
but that the casing was still uneven, and when another
section was placed holes were bored in the casing lower down,
and this section so fit in as to make it level. But did this
make the casing even up to that point? Certainly not; but
respondent contends that this uneven condition of the casing
did not in any manner affect the pier in its durability, that
the casing is but the shell in which the concrete is to
remain, and is held until it becomes hardened, and that after
six months the shell may be safely removed. I am not
unmindful that some of the witnesses testify that this
unevenness did not affect the pier; but does it not stand to
reason that, if the shell or casing in which the concrete is
to remain until hardened is uneven, leaning upstream, the
concrete itself, which in this case, with the piling,
constitutes the pier, would partake of this same unevenness
and also lean upstream? The question to my mind answers
itself. But, to say the least of it, if it be conceded that
it did not affect the durability of the pier, was not this
condition of affairs at that time, to use the language of
counsel in his brief, 'an urgent invitation' to carry
the casing on down to a better and more solid foundation?
"Respondent
admits, however, that the center pier did not rest upon a
suitable foundation, but insists that the bridge was erected
at the point designated by complainant, and that such place
was not suitable for the erection of the bridge. That
complainant insisted upon the erection of the bridge at the
place known as Martin's Ferry is not disputed, nor can it
be disputed that respondent contracted and agreed to build
the bridge...
