AN ACT to reduce into one the several acts concerning Roads, Bridges Ferries, and Highways.
SEC. 1. Be it enacted by the Senate and House of Representatives of the State of Alabama, in General Assembly convened, That all public roads and highways in the several counties of this state, that have been laid out or established by virtue of any act of the General Assembly heretofore made, or by virtue of any order of court, except such as have been discontinued, are hereby declared to be public roads; and that at all times hereafter, the county courts of the several counties of this state shall have full power to order the laying out public roads where necessary, and to discontinue such county roads as now are, or shall hereafter be made, as shall be found useless, and to alter roads so as to make them more useful, as often as occasion may require: Provided, That the courts of the several counties of this state shall in no instance grant an order on any petition for any new public road, or to discontinue an original one, unless the person or persons petitioning for the same shall have given at least thirty days notice, by advertisement, of his or their intended application, stuck up at the court house, and three other public places in the county, in which the road is intended to be made, or discontinued.
Sec. 2. Be it further enacted, That all roads hereafter ordered to be made, shall be laid out by a jury of householders, to be appointed by the county court of roads and revenue, and said jury shall consist of seven persons, a majority of whom shall be instructed by the court to lay out the road so ordered to the greatest advantage of the inhabitants, and as little as may be to the prejudice of enclosures; and the said jury shall take the following oath, to wit: "I,---------, do solemnly swear, that I will lay out the road now directed to be laid out, by the ordered to us directed from the county court of roads and revenue, to the greatest advantage to the public, and with as little prejudice to enclosures as may be, without favor or affection, malice or hatred, and to the best of my skill and knowledge: so help me God."
Sec. 3. Be it further enacted, That it shall be the duty of the county court of roads and revenue of each county in this state, to divide all the roads passing through their respective counties into different grades; and said roads shall be kept open and repaired in the following manner: Those of the first grade shall be cleared of all trees, at least thirty feet wide, with all stumps cut within six inches of the surface, all causeways at least fifteen feet wide. Second grade, to be not less than twenty feet wide, with all stumps cut within six inches of the surface, all causeways at least twelve feet wide. Third grade, to be not less than fifteen feet wide, with all stumps cut within six inches of the surface, all causeways at least ten feet wide. And in all cases where a new road is established the owner or owners of the land over which such road passes, may at the next term of the county court apply to said
court for damages for the injury which he, she or they may have sustained by the establishment of such road: and it shall be the duty of the court to cause a jury to be empannelled to inquire of such damages, in which injury the jury shall take into consideration the advantages and disadvantages accruing to such applicant by the establishment of such road, and give their verdict accordingly: and the damages, if any assessed, shall be paid out of the county treasury.
Sec. 4. And be it further enacted, That the county courts and commissioners of roads and revenue are hereby required to divide the public roads in their respective counties into districts or precincts, and to appoint, annually, at their first term in each and every year, one overseer for each district or precinct: And it shall be the duty of the clerk of said court, within fifteen days after the appointment so made, to deliver a copy of the order to the sheriff of the county, in forming said overseer of his appointment, the precinct of the public road to which he is appointed, and the grade of said precinct: And the sheriff shall, within ten days after the receipt of such copy, deliver a counterpart thereof to the overseer, and make his return thereof on said copy within ten days after the delivery of such counterpart to the county court clerks office. And it shall be the duty of such overseer, on receiving such counterpart as aforesaid, to deliver a copy thereof to some one of the apportioners in his district or precinct; and should the bounds of another captains company approach so near to his district or precinct that, from the distance, hands may be liable to work on his district or precinct, in that case he shall deliver a copy, similar to the copy aforesaid, to one of the apportioners in said captains company: Provided, that when the apportioners shall fail to apportion the hands to work on any public road under their jurisdiction, then and in that case the last apportionment of hands made and returned shall be obligatory, and remain in full force and effect until altered; and all hands subject to work on the road to which the same has been apportioned heretofore, and still living within said bounds, and all persons moving within the bounds of the hands apportioned as aforesaid, liable to work on any such road, shall be considered as belonging to said road, and liable in the same manner as though they had been apportioned to work on said road, and for neglect shall be proceeded against in the same manner as other defaulters of public roads, any law or usage to the contrary notwithstanding.
Sec. 5. And be it further enacted, That the county court of roads and revenue shall have full power, and they are hereby required at the time they appoint overseers of roads, to nominate and appoint three freeholders or householders in each captains beat, (a majority of whom may act,) within their respective counties, who shall apportion the hands liable by law to work on public roads to each overseer, agreeably to the grade of, and the necessary labor required on, his
his precinct or district: And it shall be the duty of each and every person, on application of any one of said apportioners within the bounds of said company, within fifteen days after the term of the county court at which overseers of public roads are required to be appointed, to give in a list of all the hands he may at that time have in his possession, himself included, liable to work on public roads; and if any person shall neglect for the space of ten days thereafter to deliver a list thus required to some one of the apportioners, such person so refusing or neglecting shall forfeit and pay the sum of six dollars for each hand liable to work, so refused or neglected to be given in or returned; which fines shall be recovered by judgment on motion in the circuit curt, without the interposition of a jury, unless the same shall be demanded by the defendant, which motion shall be made by the solicitor of the circuit in which such defaulter resides: Provided, however, that in all cases it shall be the duty of the solicitor to give to such defaulter three days notice, and in all cases of such failure, the certificate of such apportioner or apportioners shall be deemed sufficient evidence.
Sec. 6. And be it further enacted, That all free with male persons, between eighteen and forty-five years of age, and all male slaves and other persons of color over sixteen and under fifty years of age, shall be liable, and it is hereby made their duty, to work on, clear out, and repair the public roads of this state, under such provisions and regulations as are hereinafter made: Provided, nevertheless, that no licenses minister of the gospel, instructor of public and private schools, and all students of common schools or public institutions, keepers of grist mills that grind for toll, public ferrymen, commissioners of revenue and roads, the directors of the bank of the state of Alabama, judges of the county court and justices of the peace, shall be liable to work on public roads.
Sec. 7. And be it further enacted, That the clerks of the several county courts of this state shall put up in their respective court houses, on the first day of each circuit court, a list of the names and precincts of all the overseers of the roads in the county; and on neglect shall forfeit and pay for each failure ten dollars, to be recovered on motion made by the solicitor to the circuit court as prescribed in the fifth section of this act.
Sec. 8. Be it further enacted, That every person refusing to serve as an overseer on any road agreeably to the order of the court of the county in which he resides without a reasonable excuse, to be judged of by the circuit court, shall forfeit and pay a sum not exceeding forty dollars; and that is shall be the duty of each and every overseer of any public road in this state, to notify the clerk of his county court of his non-acceptance within ten days after his being notified of his appointment, and on failure to do so, it shall be considered an acceptance of his appointment, and it shall moreover be the duty of the clerk to insert on the commission, the duties
required of overseers, in respect to his non-acceptance, any law to the contrary notwithstanding; and if any overseer shall notify the clerk of his refusal to act, the clerk shall forthwith report the same to two justices of the peace of the neighborhood where such overseer resided, who are hereby authorized and required to appoint a successor to serve for the residue of the time; and such new overseer, so appointed, shall be subject to the same penalties and forfeitures as the overseer appointed by the county court, and the penalty for refusing to accept shall be recovered by judgment in the circuit court, on motion of the solicitor, as is prescribed in the fifth section of this act, and the certificate of the clerk of the county court in all cases of forfeiture incurred under this section of this act, be deemed sufficient evidence: Provided, nevertheless, that no person shall be compelled to serve as an overseer more than one in every three succeeding years.
Sec. 9. Be it further enacted, That it shall be the duty of the overseer of any road to give three days previous notice, by summons in person, or in writing left at their respective places of abode, by himself or some other person appointed by him, to all free male persons, as well as to the owner, overseer or overseers of slaves, liable to work on roads as appointed to him, to meet at such times and places as he may appoint, and to bring with them such tools to work with on the roads as he may direct; and if any free person, so summoned, shall fail to attend, or send a substitute to work in his place, or when attending shall neglect or fail to do and perform his or their duty therein, he or they shall forfeit and pay a fine of one dollar per day each, for every such failure, non-attendance, or refusal; and if any slave or slaves fail to attend agreeably to the summons of the overseer of the road, to the owner or overseer of such slave or slaves, then and in that case the owner, owners, or overseer, (as the case may be,) shall forfeit and pay one dollar per day for each and every slave that shall fail to attend as aforesaid: Provided, that all reasonable excuses shall be heard and allowed: And it shall be the duty of the overseer to return on oath a list of all hands apportioned to him within his district or precinct, who may not have worked when by him called out, to some justice of the peace in said precinct, whose duty it shall be, within ten days thereafter, to issue his warrant, and collect said fine as other debts are now collected by law, and the certificate of said overseer shall be deemed sufficient evidence; and the fines so collected shall be paid over to the overseer of said road, to be appropriated in hiring hands to work on said road: Provided, nevertheless, That if any overseer return an incorrect list to said justice of the peace, any person or persons injured thereby may recover the amount of any damages sustained by him or them, by an action of debt, before any justice of the peace or court having jurisdiction thereof: Provided, that overseers shall in no case pay cost in case the defaulter should be exonerated from fine.
Sec. 10. Be it further enacted, That it shall be the duty of all overseers of public roads to measure such parts of roads as fall within their respective precincts or districts, in continuation and to set up posts at the end of each mile, leading from the court house or some noted place or town, and to mark on the said posts in large legible figures, the distance in miles to said court house or other noted place, and when a post so erected shall be removed by any means whatever, the overseer of the road shall cause the same to be replaced by another, to be put in the same place, marked as on the one removed; it shall also be the duty of overseers of roads to affix at the forks or all public roads, in their respective districts or precincts, index board, pointing towards, with directions to, the most noted places to which they lead; and on failure to out mile posts marked as aforesaid, or index boards as aforesaid, within sixty days after their appointment, the overseer of such road, for every such failure or neglect, shall forfeit and pay the sum of five dollars, to be recovered by judgment of the circuit court, on motion of the solicitor as prescribed in the fifth section of this act.
Sec. 11. Be it further enacted, That the overseers of the roads shall have power to call out all persons apportioned to work on their respective roads within their precincts or districts, at any time and at all times when they may think proper: Provided nevertheless, That no new road shall be cut out hereafter between the first day of March and the tenth day of July in each and every year: And provided also, That no person shall be compelled to work on more roads than on in any one year, nor more than ten days on any road: Provided, that no new road shall be opened through an enclosure whilst there is a crop growing in the same.
Sec. 12. Be it further enacted, That if any person or persons whatsoever shall alter or change any public road, unless it be by order af the county court of the county, founded upon the report of a jury appointed and sworn as in the case of laying out new roads, they shall on conviction of every such offence be fined in a sum not less than twenty dollars for each month the road is turned out of the old course, and that the old road shall in no case be shut up until the overseer shall certify to the court that the newly opened road is in good and sufficient order; nor shall any person or persons erect or cause to be erected across any public road any fence, bar, or impediment, or shall fall a tree or brush on the same, and shall not remove such impediment within twenty-four hours thereafter, he or they shall forfeit and pay five dollars for every such offence, and shall moreover be liable to pay five dollars for every twenty-four hours after the first day such impediment remains in said road; and it shall be the duty of the overseer of the road, turned as aforesaid, or on which such impediment may be, to judge information with the solicitor of the county in which the same may be, and the circuit court shall enter up judgment against the offender or offend-
ers, as prescribed in the fifth section of this act, for the amount of the penalty incurred; and the oath of the overseers of the precinct or district shall in all cases be deemed sufficient evidence: Provided, that nothing herein contained shall subject the party removing said road to damages where the same is done to straighten said road through enclosures, or where the removal shall not render the said road more inconvenient to the public.
Sec. 13. Be it further enacted, That when to the overseer of roads it may appear expedient to make or repair causeways on the same, said overseer shall make them according to the grade of said road; and the earth necessary to cover said cause way shall be taken from either side of said causeway, at the discretion of said overseer, so as to make a drain on either or both sides.
Sec. 14. Be it further enacted, That when a bridge shall be necessary over any place where the overseer with his assistants cannot conveniently make it, the court of the county wherein such place may be, is hereby empowered and required to contract and agree for the building, keeping and repairing thereof, and to lay the charge on their county by tax or otherwise; and where bridges shall be necessary over any such creek or river, which divides one county from another the court of each county shall join in the agreement for building, keeping and repairing the same, and the charge thereof shall be borne and defrayed by both counties in proportion to the amount of taxables in each; and all and every contract, agreement and order by the several county courts in this state, entered into, or make for or concerning the building, keeping or repairing of bridges or cause ways in such manner as to them shall seem most proper, shall be good against them and their successors in office.
Sec. 15. Be it further enacted, That every overseer of any road who shall fail or neglect to keep the roads, bridges and causeways, within his district or precinct, clear and in good repair, or permit them to remain uncleared or out of repair, for fifteen days at any one time, unless hindered by high water, bad weather, or other sufficient cause, to be adjudged of by the court having jurisdiction of the same, such overseer so failing shall forfeit and pay for every such offence a fine not exceeding twenty dollars, at the discretion of the court, said fine to be recovered by judgment of the circuit court, on motion made by the solicitor, as prescribed in the fifth section of this act: Provided nevertheless, That payment of the penalty shall not prevent any persons who may have sustained damages by the road being out of order from recovering the amount of such damage from such overseer.
Sec. 16. Be it further enacted, That all times hereafter the county courts of this state shall have power to establish ferries, and under them under such regulations as is hereinafter directed: that before any person shall open or establish a public ferry in this state, he shall apply to the county courts
of the county in which such ferry may be, and the court, for good causes shewn by the party applying, may grant a license to establish a ferry, and shall affix the rate of toll or ferriage on all persons, horses, cattle, or carriages, &c. that may pass the same, and shall moreover require from the person or persons so applying for license, to give bond with good and sufficient security in the sum of one thousand dollars, payable to the judge of the county court, and his successors in office, of the county in which the ferry may be, conditioned that the person or persons to whom said license may be granted, that he or they will constantly provide and keep a good and sufficient boat or boats, also keep the banks on each side of the water course in good repair, and that said ferry shall be well attended for travellers or other persons to carry or pass their horses, carriages, or effects, over river or water course.
Sec. 17. Be it further enacted, That where land is owned by the same person on both sides of a river, over which it may be necessary to establish a ferry, such person shall have the ferry established on his land on both sides if he desire it, unless public convenience would be thereby prejudiced; but if the land of such person is most suitable on one side of such river, and not on the other, then the court may establish such ferry so as to produce the most public good, and least private injury; but no public ferry shall be established within less than two miles by water of any ferry already established, unless on any river at or within two miles of any town: Provided nevertheless, That a ferry may be established on any sixteenth section whenever the trustees of said sixteenth section think it advantageous to the township in which said section may be.
Sec. 18. Be if further enacted, That the county court through whose county large creeks or water courses pass, over which it may be too burthensome to build bridges by a county tax, if is hereby made lawful for such county courts to contract with any person or persons to build a toll bridge or causeway, for which the court is hereby authorized to lay the toll to be levied on all persons, horses, cattle, and carriages, passing over the same, to be granted to the undertakers for such a number of years as the said court may agree upon for the building such bridge or causeway; and the builder or builders, and their successors, shall keep the same in constant repair, and in default thereof, the owners of such bridge or causeway shall, and are hereby declared to forfeit all right and title to the toll thereof during the continuance of the same out of repair.
Sec. 19. Be it further enacted, That the county court, before granting a license to any person or persons to build a toll bridge or causeway, as authorized in the foregoing section of this act, shall take a bond in the same way and manner as is prescribed in establishing ferries, for a sum not exceeding one thousand dollars; and if any person or persons shall at time sustain damage in consequence of any ferryman or owner
of the ferry, or keeper of a toll bridge or causeway, not having complied with the conditions of his or their bond, the person or persons so damaged may bring an action of debt against such ferryman or owner of such ferry, or keeper of a toll bridge or causeway, on his or their bond, in the name of the judge of the court of the proper county, and recover judgment for the non-performance of the said conditions, for so much damages as he, she or they may have sustained, and thereupon take out execution, and cause the money to be made, and when made, to apply the same to his, her or their use, which bond shall not be void upon the first or any other recovery; and it shall and may be lawful for any person or persons, detained at any public ferry by reason of the ferrymans not having good and sufficient boats, or other proper craft and hands, or by neglecting to do his duty, to obtain a warrant from a justice of the peace, and recover of such ferryman or owner of such ferry, the sum of ten dollars for every default or neglect: Provided, That any such recovery shall not be a bar to any action for damages sustained by any person by reason of the insufficiency of said ferries and bridges.
Sec. 20. Be it further enacted, That if any person or persons shall establish a public ferry, toll bridge, or causeway, contrary to the provisions of this act, he or they shall forfeit and pay five hundred dollars for every public ferry, toll bridge, or causeway, so established, to be recovered by indictment or presentment by a grand jury, in the circuit court of the county or counties in which such ferry, toll bridge or causeway shall be so established; and every person or persons who may have any licensed ferry, toll bridge or causeway, and who shall demand and take a greater toll than is allowed him or them by law, or by order of the county court, shall forfeit and pay the sum of five dollars for each and every such offence, to be recovered by indictment or presentment of a grand jury, as prescribed in the foregoing part of this section.
Sec. 21. Be it further enacted, That it shall be the duty of the judges of the several circuit courts of this state to give in charge to the grand juries of the different counties, at the opening of each term of said courts, this act, and the said grand jury shall present the overseers of every public road, bridge, and causeway, as well as the owners and keepers of toll bridges, causeways and ferries, which shall not or may not have been kept in such order or repair as required by law; and every person or persons who may have altered any public road without having obtained an order of court therefor, as is directed by the provisions of this act, or any such person or persons who may have erected any fence or bar, impediment, or fell trees or brush in any public road, contrary to this act; and it shall be the duty of the solicitor of the circuit courts upon such presentments make by the grand jury, after giving such defaulter three days notice, to move the court for judgment against such defaulter or defaulters in the same way as prescribed in the fifth section of this act: Provided, however,
that the court shall hear the excuse of any overseer or other person who may have violated the provisions of this section of this act, and on good cause being shown for default, then, and in that case, no judgment shall be awarded.
Sec. 22. Be it further enacted, That all overseers of roads in this state, may and are hereby authorized to contract with a carpenter to make all mile-posts and index-boards necessary for his district or precinct of good durable wood, and
for cutting the figures on the former, and for painting the latter, both of which shall be done in a good and proper manner, and it shall be the duty of the said overseer to attest his account, and deliver the same to the county court, who shall order the amount to be paid by the county treasurer out of any monies in the treasury belonging to the road fund.
Sec. 23. Be if further enacted, That when may be necessary to use a waggon to haul materials for any bridge, causeway, or other purpose in repairing roads, the overseer of such road is hereby authorized to exchange the labor of any hands bound to work on such road, for the use of a waggon or waggons and teams to be employed as aforesaid; and if any overseer find it impracticable to make such arrangement, he is hereby authorized to hire a waggon or waggons when necessary, and present his account on oath to the county court, for the hire of the same, who shall pay the amount out of any monies in the county treasury belonging to the road fund.
Sec. 24. Be it further enacted, That all persons liable to work on public roads, living within five miles of any part of any public roads, may be appointed to work on the same, and all persons liable to work on public roads, living within three miles of any new road about to be opened, shall work on public same: Provided, That all persons liable to work on public roads, and living within ten miles of the main public road leading from the town of St. Stephens to the city of Mobile, and south of Bassetts creek on said road, shall work on the same: Provided, also, that it shall be the duty of all persons liable to work on public roads, to work on some road; and when any person or persons living at a greater distance than five miles from any road, they shall be apportioned to work on the nearest road to them.
Sec. 25. Be it further enacted, That it shall be the duty of all overseers, justices of the peace, clerks of the inferior and circuit courts, or other officers into whose hands may be paid any monies arising from fines, penalties or forfeitures, under this act, (except the fines prescribed in the ninth section of this act, to pay the same over to the county treasurer of the county in which the same may be, within twenty days after the same may come to his, or their hands; and if any overseer, justice of the peace, clerk of the inferior or circuit court, or other officer, fail or neglect so to do, he or they shall forfeit and pay for such failure or neglect, double the amount so received, to be recovered by judgment of the circuit court,
had on motion of the solicitor of the district, as prescribed in the fifth section of this act.
Sec. 26. Be it further enacted, That it shall be the duty of the county treasurer of the several counties of this state, to receive all monies directed to be paid from by this act, to keep a separate and distinct account of the same, under the title of "road fund," which monies shall be exclusively under the control of the county court, and shall be appropriated by them only, for the purpose of opening new roads, building and repairing bridges, causeways, public roads, and for erecting mile posts and index boards.
Sec. 27. Be it further enacted, That if any person shall be guilty of defacing or pulling down any mile post or index board, and being convicted thereof before any justice of the peace for said county, shall forfeit and pay ten dollars for every such offence, to be applied to the improvement of such road.
Sec. 28. Be it further enacted, That all commissioners appointed by the court to lay out roads, who may refuse or neglect to perform the duty assigned him or them, shall each forfeit and pay for every such failure or neglect, a sum not exceeding twenty dollars, to be recovered as is provided in the fifth section of this act: Provided nevertheless, That such fine shall not be imposed when a good and sufficient excuse may be offered.
Sec. 29. Be it further enacted, That the apportioners appointed agreeably to the fifth section of this act, shall on or before the first Monday in April in each and every year, report to the clerk of the county court, the number of hands appointed to each overseer, within their respective bounds, to be filed in said clerks office, on failure thereof each apportioner shall forfeit and pay not exceeding twenty dollars, to be recovered by judgment of the circuit court, had on motion of the solicitor of the circuit, as prescribed in the fifth section of this act: Provided nevertheless, That all good excuses shall be heard.
Sec. 30. And be it further enacted, That in those places where it is necessary to purchase timber to repair or causeway roads, the overseer of such road is hereby authorized to contract for such timber as will be necessary to repair such road; and where timber cannot be had near a road, where it may be wanting, the overseer may contract for hauling the same, which contract shall be laid before the judge of the county court and commissioner of roads and revenue, who are hereby authorized and required to order payment to be made for as much as they shall judge reasonable, out of the county treasury.
Sec. 31. And be it further enacted, That where the overseer of any road fails to prosecute defaulters as the law directs, for failing to work on a road as warned, it shall and may be lawful for any person or persons that is appointed to work on said road, to apply to a justice of the peace near the precinct
where such overseer may reside; and the said justice is hereby required to issue a summons against such overseer, requiring him to appear before said justice and shew cause why the defaulters were not prosecuted, and if such overseer fails to appear or shew cause as required, the justice shall give judgment with costs for as much as the fines would amount to firm the defaulters complained, and the officer collecting the same shall pay it over into the county treasury.
Sec. 32. And be it further enacted, That in all cases, the overseers of all and every road in this state, shall have authority to appoint one fit person in his respective precinct to warn the hands liable to work thereon; and notice thus served shall in all cases be as binding as if served by the overseer in person, and the person appointed and performing said duties, shall be exempt from working on roads.
Sec. 33. And be it further enacted, That the act entitled an act to reduce into one, the several acts concerning roads, bridges, ferries, and highways, passed December 21st, 1820, and an act entitled an act to repeal in part and amend an act entitled an act to reduce into one the several acts concerning roads, bridges, ferries, and highways, passed Dec. 19, 1821, and all acts and parts of acts coming in conflict with the provisions on this act, be and the same are hereby repealed: Provided, That this shall not be construed to apply to any turnpike or other road authorized by name, by any act of the legislature, nor to the appointment of overseers in incorporated towns or to any of the duties of overseers or hands in said towns.
Sec. 34. And be it further enacted, That nothing in this act contained shall be construed to extend to the county of Mobile.
Sec. 35. And be it further enacted, That if any clerk or sheriff shall fail to perform any of the duties required of them by any of the provisions of this act, they shall on conviction, forfeit and pay the sum of fifty dollars, to be recovered in the same manner as is provided for by the fifth section of this act.