Forsyth County v. Gwinnett County

• Decision Date: 20 July 1899
• Citation: 33 S.E. 892,108 Ga. 510
• Parties: FORSYTH COUNTY v. GWINNETT COUNTY. v. FORSYTH COUNTY.
• Court: Georgia Supreme Court

33 S.E. 892

108 Ga. 510

FORSYTH COUNTY v. GWINNETT COUNTY. v. FORSYTH COUNTY.

Supreme Court of Georgia

July 20, 1899

Syllabus by the Court.

1. A county which causes a bridge to be constructed over a water course dividing it from another county cannot compel the latter to pay any portion of the expenses thus incurred unless the contract under which the work is done be made in the manner prescribed by law.

2. The statute relating to the taking of bonds from contractors in such cases is not, in a given instance, duly complied with when the bond contains a stipulation exempting the contractor from all liability to make repairs rendered necessary by "actions of the elements."

Error from superior court, Gwinnett county; N. L. Hutchins, Judge.

Action by Forsyth county against Gwinnett county. Defendant filed a cross bill. There was a verdict for defendant. Judgment overruling plaintiff's motion was entered, and plaintiff brings error. Judgment on main bill affirmed, and cross bill dismissed.

H. P Bill, H. L. Patterson, and N. L. Hutchins, Jr., for plaintiff in error.

W. E Simmons, C. H. Brand, and T. M. Peeples, for defendant in error.

LUMPKIN P.J.

The ordinary of Forsyth county, after ineffectual efforts to secure co-operation from the board of commissioners of Gwinnett county, caused a bridge to be erected over the Chattahoochee river at a point where it divides the two counties. In letting out the work a bond was taken from the contractor, the Virginia Bridge & Iron Company, which, among other things, stipulated that the company was to "keep said bridge in repair for seven years, actions of the elements only excepted." After the erection of the bridge, Forsyth county brought an action against Gwinnett county to compel contribution of its alleged fair proportion of the cost. At the trial there was much evidence tending to show that the bridge was a work of public necessity. There was, however, a verdict for the defendant. In the order overruling the plaintiff's motion for a new trial the judge strongly intimated that he was of the opinion that upon the question of necessity the finding should have been in favor of Forsyth county and based his refusal to set the verdict aside mainly on other grounds. In the view we take of the case, it turns upon purely legal questions.

1. In the first place, we do not think Forsyth county was entitled to compel Gwinnett county to pay any portion of the cost of the bridge, unless it was erected in accordance with the requirements of the law. This proposition does not seem to require extended argument. It certainly would not do to hold that the authorities of one county could, in a totally unlawful and unauthorized manner, cause a bridge to be erected over a stream dividing it from an adjoining county, and thereby acquire the right to compel such other county to pay a portion of the expenses thus incurred. Obviously, such a doctrine would lead to pernicious consequences. As the right to compel contribution is one purely of statute law, the county attempting to assert it must show that in at least all substantial particulars the requirements of the statute were obeyed.

2. We have, without serious difficulty, reached the conclusion that in letting out the contract for the building of the bridge now in question the ordinary of Forsyth county did not properly comply with that requirement of the statute which relates to contractors' bonds. Sections 367-371 of the Political Code were codified from the act of August 8, 1881 (Acts 1880-81, pp. 132, 133), "to regulate the manner of letting out contracts to build or repair public bridges over water courses which divide one or more counties from each other, and to provide for the payment of the same when completed." These sections deal comprehensively with the subject of "county-line" bridges. Section 369 expressly declares that: "Contractors who are awarded contracts under this and the two preceding sections shall be required to give bond in double the amount of the bid, with two...