Washer v. Bullitt Co

• Citation: 110 U.S. 558,28 L.Ed. 249,4 S.Ct. 249
• Parties: WASHER and others v. BULLITT CO
• Decision Date: 03 March 1884
• Court: United States Supreme Court

110 U.S. 558

4 S.Ct. 249

28 L.Ed. 249

WASHER and others v. BULLITT CO.

March 3, 1884.

[Syllabus from page 558 intentionally omitted]

[Statement of Case from pages 559-561 intentionally omitted] Augustus E. Willson, for plaintiff in error.

James Speed, for defendant in error.

WOODS, J.

The defendant in error contends that the appeal should be dismissed because the amount in controversy is less than $5,000, and therefore not sufficient to give this court jurisdiction. This contention is based on the averments of the original petition, which showed that the suit was brought to recover only $3,184.39, the balance due for work done under the contract sued on, and for $500 damages. In the amended petition all the averments of the original petition by which the amount in controversy was reduced below $5,000 were withdrawn, and it was averred that the sum of $5,325.14 was due to the plaintiffs for work done under the contract. It was as competent for the plaintiffs, when leave had been given them to amend their petition, to amend it in respect to the sum for which judgment was demanded as in any other matter. The admission in the original petition of the payment of $1,800 was specifically withdrawn in the amended petition, and after the withdrawal of that admission it nowhere appeared in the record that said sum was ever paid. The admission might have been made by the inadvertence or mistake of the plaintiffs or their counsel; but, however made, it was within their power to withdraw it without assigning reasons for the withdrawal. They were not inexorably bound by the averments of the original petition. When a petition is amended by leave of the court, the cause proceeds on the amended petition. It was upon the amended petition that the judgment of the court below was given, and the question brought here by this writ of error is the sufficiency of the amended petition. If its averments show that this court has jurisdiction, the jurisdiction will be maintained without regard to the original petition. It has been held by this court that after a case had been dismissed by it for want of jurisdiction, the pleadings being technically defective, the circuit court might allow an amendment so as to show the jurisdiction, and on a decree newly rendered the case might be again brought to this court. Jackson v. Ashton, 10 Pet. 480. As the amended petition avers that there is due the plaintiffs a sum exceeding $5,000, we are of opinion that the jurisdiction of this court is plain upon the face of the record.

We now come to the merits of the case. The demurrer admits the execution of the contract by Ridgway, the county commissioner, under authority of an order of the county court; its subsequent ratification by orders of the county court, composed of the county judge and a majority of the justices of the county, directing the levy of taxes to pay for work done under the contract, and directing the application of the money so raised to that purpose; and admits that there is due the plaintiffs the sum of $5,325.14 for the work so done. The county of Jefferson raises no objection to the building of the bridge. So far as appears, it is quite willing that Bullitt county should erect the bridge, provided it does so at its own expense. The land-owners at the Jefferson county end of the bridge, over and on whose premises a part of the bridge rests, make no objection. On the contrary, they have granted a right of way to Bullitt county over their lands to and across the bridge. The only controversy between the parties is whether Bullitt county had authority to make the contract sued on, by which it undertook at its own cost to build across a boundary stream a bridge, one end of which was within the territory of another county. The statute law of Kentucky applicable to this question is as follows: Section 1 of article 16, c. 28, Gen. St. Ky. p. 305, provides: 'County courts have jurisdiction to lay and superintend the collection of the county levy, erect and keep in repair necessary public buildings, bridges, and other structures, and superintend the same; regulate and control the fiscal affairs and property of the county; * * * provide for the good condition of the public highways in the county; and to execute all of its orders consistent with law and within its jurisdiction.'

Sections 36, 37, and 38 of article 1, c. 94, Gen. St. p. 767, declare as follows:

'Sec. 36. When the county court of any county shall deem it advisable to erect a bridge or causeway over any place between that and an adjoining county, the court shall appoint a commissioner, and notify the court of the adjoining county thereof, and request the latter to appoint a like commissioner; and it shall be the duty of the court so requested to appoint such commissioner. The persons so appointed shall meet at the place so proposed for erecting the bridge or causeway, and agree on a plan for the same, and contract for the erection thereof; and each of said county courts shall levy the costs of such work on its county in proportion to the number of tithables in each county.

'Sec. 37. When the county court of one county shall think it expedient to build a bridge or causeway, and shall appoint a commissioner on its part as provided in the preceding section, and the court of the adjoining county shall refuse to appoint a commissioner, * * * the circuit court of the county refusing may issue a writ of mandamus to the county court to show cause why an order shall not be entered up, directing the appointment of the commissioner, and the erection of such bridge or causeway, etc.

'Sec. 38. When the mandamus is returned, the circuit court shall hear and consider such evidence touching the matter as either party may adduce, and shall either dismiss the proceedings or award a peremptory mandamus, as may seem proper.'

At common law a bridge was a common highway, and the county was bound to repair it. Reg. v. Sainthill, 2 Ld. Raym. 1174; 3 Salk. 76; Rex v. Kent, 13 East, 220. Under the statute of 22 Henry VIII., which has been held to be merely declaratory of the common law, when part of a bridge happened to be in one shire and the other part in another, the respective shires were bound to repair within their respective limits. Woolr. Ways, 200. But when a bridge which crossed a river dividing two counties was maintained by one of the counties under the statute of 23 Henry VIII., it was held that under the same statute it was compellable to repair the highway as a part of the bridge for a distance of 300 feet from each end of the bridge, although one end was in another county. Rex v. Inhab. of Devon, 14 East, 477. It is therefore clear that at the common law a county might be required to maintain a bridge or causeway across its boundary line, and extending into the territory of an adjoining county. The same rule prevails in this country. 'A county is one of the territorial divisions of a state, created for public political purposes...