An Act to reduce into one the several acts concerning Roads, Bridges, Ferries and Highways.
Section 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 appointed by virtue of any act of the General Assembly heretofore made, or by virtue of any order of court, 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 powers to order the laying out public road s where necessary, and to discontinue such 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, unless the person or persons petitioning for such road, shall have given at least thirty days notice by advertise-
ment of his or their intended application, struck up at the court house and three other public places in the county in which the said road may be.
Sec. 2. Be it enacted, That all roads hereafter ordered to be made shall be laid out by a jury of freeholders or householders, to be appointed by the county court, and said jury shall consist of seven persons who 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 inclosures &c; 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 order to us directed from the county court to the greatest advantage to the public, and with as little prejudice to inclosures as may be, without favor or affection, malice or hatred, and to the best of my skill and knowledge, so help me God. And all public roads shall not be less than thirty feet wide, and completely cleared of all trees, bars and impediments and stumps, not to exceed four inches above the ground 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 enquire of such damages, in which enquiry 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 shall be assessed shall be paid out of the county treasury.
Sec. 3. Be it further enacted, That all free white male persons between eighteen and forty-five years of age, all male slaves and other persons of colour over eighteen 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 licensed ministers of the Gospel or instructors of public and private schools shall be liable to work on public roads.
Section 4. And be it further enacted, That the county courts of the respective counties shall have full power and they are hereby required to divide the public roads into districts or precincts and shall annually appoint one overseer for each district or precinct, and at the same time shall nominate and appoint such persons as they may deem necessary, within their respective counties, who shall apportion the hands liable by law to work on public roads, among such overseers as they shall direct, and the clerk of every county court shall within ten days after the apportionments so made, deliver a copy of the order to the sheriff of the county, and the sheriff shall, within ten days after the receipt of such order, deliver the same to the overseer and it shall be the duty of such overseer, on receiving his appointment, and the order of apportionment, to deliver said order to the commissioners of apportionment, or any one of them, whose duty it shall be, to apportion the hands so divided within five days thereafter and on failure of the clerk of sheriff to deliver such order herein directed, each shall forfeit and pay of every such failure ten dollars which fines shall be recovered by judgment on motion in the circuit court 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 a commissioner or apportionment, shall be deemed sufficient evidence.
Sec. 5. 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 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 fourth section of this act.
Sec. 6. And be it enacted, That every person refusing to serve as an overseer on any road agreeable 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 the sum of forty dollars and it shall be the duty of every person appointed an overseer, to notify the clerk of his county of his acceptance or refusal to act within ten days after he receives notice of his appointment to the said office, under the penalty of ten dollars for neglect, ad 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 authorised and required to appoint a successor to serve for the residue of the term 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 refusal to accept and for failing to notify the Clerk of his refusal or acceptance shall be recovered by judgment in the Circuit Court on motion of the solicitor as is prescribed in the fourth 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 shall be deemed sufficient evidence: Provided nevertheless, that no person shall be compelled to serve as an overseer more than one, in any three successive years.
Sec. 7. Be it further enacted, That it shall be the duty of every overseer of the road immediately after his appointment and the apportionment of the hands, to demand a list from every person within his district or precinct, of all the hands he has in his possession, himself included, liable to work on roads, which demand shall be made in person or in writing left at the usual place of abode of the person applied to, a copy of which list the said overseer is hereby required to return to the county court, at the next succeeding term; and if any person shall refuse or neglect for the space of ten days to deliver a list thus required to said overseer, 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, to be recovered on motion of the solicitor to the circuit court, as prescribed in section fourth of this act, and the evidence of the overseers shall be deemed sufficient proof of such refusal or neglect.
Sec. 8. 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, to all free male persons as well as to the owner, overseer, or overseers of all slaves liable to work on roads as apportioned by him to meet at such times and places as he may appoint and to bring with them such tools to work with on the road, 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 to fail to do and perform his or their duty therein, he or they shall forfeit and pa 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, 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 under oath a list of all bands apportioned him within his district or precinct, who may not have worked when by him called out, and said county court shall cause the clerk of said court to deliver a certified covered. copy of the same, in charge of the tax collector of such county, who shall collect the same in the same manner as the taxes of each county which he shall when collected pay over to the clerk of said court, Provided nevertheless, that if any overseer returns an incorrect list to the county court, any person injured thereby may receive the amount of any damage sustained by him or them by an action of debt before any Justice of the Peace or Court having jurisdiction thereof.
Sec. 9. Be it further enacted by the authority aforesaid, That it shall be the duty of all overseers of public roads, to measure all roads, and to set up posts at the end of each mile leading from the Court House, or some noted place or Town in their respective counties and to make on the said posts in large legible figures the distance in miles to their said Court House, or some other noted place or town, 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 down 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 of all public roads in their respective districts or precincts index boards pointing at, with directions to the most noted places to which they lead, and on failure, to put down mile posts marked as aforesaid, or Index boards as aforesaid; the overseer of such road for each 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 fourth section of this act.
Sec. 10. Be it further enacted by the authority aforesaid, That overseers of the road 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 think proper: Provided nevertheless that no person shall be compelled to work on more roads than one in any one year, nor more than ten days on any road.
Sec. 11. Be it further enacted by the authority aforesaid, That if any person or persons whatsoever shall alter or change any public road, unless it be by order of the county court of the county, founded upon the report of a jury appointed and sworn as in the case of laying out a road new roads, they shall on conviction of every such offence, be fined ten 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, bard, impediment or shall fall a tree or brush on the same and shall not remove and clear away such fence, bar, impediment, tree or brush within twen-
ty 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 that the said fence, bar, impediment, tree or brush remains in the 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 lodge 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 offenders as prescribed in the fourth section of this act for the amount of penalty incurred and the oath of the overseer of the precinct or district shall in all cases be deemed sufficient evidence.
Sec.12. Be it further enacted by the authority aforesaid, That when to the overseers of roads it may appear expedient to make or repair causeways on the same, said overseers shall make them at least fourteen feet wide, and the earth necessary to cover the said causeways shall be taken from both sides of said causeway equally, and so as to form a drain on each side.
Sec.13. Be it enacted by the authority aforesaid, That when a bridge shall be necessary over any place where the overseers 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 made for, or concerning the building, keeping or repairing of bridges or causeways, in such manner as to them shall seem most proper, shall be good against them and their successors in office.
Sec. 14. Be it enacted by the authority aforesaid, 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 shall forfeit and pay for every such offence twenty dollars, to be recovered by judgment of the circuit court on motion made by the solicitor, as prescribed in section fourth of this act: Provided nevertheless that payment of this penalty, shall not prevent any persons who may have sustained damage by the road being out of order from recovering the amount of such damage from such overseer.
Sec. 15. Be it further enacted by the authority aforesaid, That it shall and may be lawful for any overseer, if required by a majority of the hands on the road within his district or precinct to mark out such road in equal apartments for the case of the labourers, who shall finish his or their part within the time agreed on between said overseer, and each free person, master, mistress, or overseer, and in default of any agreeing party, the overseer shall be, and he is hereby authorised to cause the same to be done by hire of other persons and thereon to tender his account and demand payment of said defaulter or defaulters, and on refusal, to warrant for the same, before some justice of the
peace, Provided, that the overseer shall in no case give a longer time than ten days to any hand to do the work apportioned or marked out for him.
Sec. 16. Be it further enacted by the authority aforesaid , That at all times hereafter, the county courts in this state, shall have power to establish ferries, and order them under such regulations as is hereinafter directed. That before any person shall open or establish a public ferry in this state, he shall first apply to the county court of the county in which such ferry may be, and the court for good cause shown by the party applying, may grant a licence 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 licence, to give bond with good and sufficient security in the sum of one thousand dollars payable to the chief justice and his successors in office, of the county in which the ferry may be. Conditioned that the person or persons to whom said licence may be granted, that he or they will constantly provide and keep good and sufficient boats, also 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 such river or water course.
Sec. 17. Be it further enacted by the authority aforesaid, 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 persons shall have the ferry established on his land on both sides if he desires 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; no public ferry shall be established within less than two miles by water of a ferry already established, unless on any river at or within two miles of any town. Provided nevertheless that any ferry may be established on any sixteenth section whenever the trustees of said sixteenth sections think it advantageous to the township in which said section may be.
Sec. 18. 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, it 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 authorised 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 such bridge or causeway in constant repair, and in default thereof, the owners of such bridge or causeways shall and hereby are declared to forfeit all right and title to the toll thereof.
Sec. 19. Be it further enacted by the authority aforesaid, That the county court before granting a license to any person or persons to build a toll bridge or causeway as authorised in the seventeenth 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 any 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 keepers of a toll bridge or causeway, on his or their bond, in the name of the court of the proper county, and recover judgment for non-performance of the said conditions for so much damage 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 ferryman's not having good and sufficient boats, or other proper craft, and hands, or by neglecting to do his duty, may, by warrant from a justice of the peace, 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 insufficiency of said ferries and bridges.
Sec. 20. Be it further enacted by the authority aforesaid, That if any person or person shall establish a public ferry or a public road , 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 and public road, 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 by the authority aforesaid, 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 the toll bridges, causeways and ferries, which shall not or may not have been kept in such order and 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, of 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 made 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 is prescribed in the fourth 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 judgement shall be awarded.
Sec. 22. Be it enacted by the authority aforesaid, That all the 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 painting the latter, both of which shall be done in a good and proper manner, and it shall be the duty of said over-
seer, 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 it further enacted by the authority aforesaid, That when it may be necessary to use a wagon to haul materials for any bridge; causeway, or other purpose in repairing roads, the overseer of such road is hereby authorized to exchange the labour of any hands bound to work on such road, for the use of a wagon or wagons and teams to be employed as aforesaid, and if any overseer finds it impracticable to make such arrangement, he is hereby authorized to hire a wagon or wagons 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 by the authority aforesaid, That all persons liable to work on Public Roads, living within five miles of any part of any public road, may be apportioned 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 the same; Provided nevertheless, that persons liable to work on public roads, living within ten miles of the state road, leading from the town of Cahawba to the town of Claiborne, and which was established by an act of the General Assembly passed at Huntsville, on the seventeenth day of December one thousand eight hundred and nineteen may be apportioned to and compelled to work on the same; and Provided also, 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 Bassets Creek on said road, shall work on the same. Provided, 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 live at a greater distance than five miles from any road, they shall be apportioned to work on that nearest them.
Sec. 25. Be it further enacted by the authority aforesaid, That no new road shall be cut out hereafter, between the first day of March and the tenth day of July of each and every year.
Sec. 26. Be it further enacted by the authority aforesaid, That it is hereby made the duty of all overseers, Justice 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, to pay the same over to the county treasurer of the county in which the same may be, within ten days after the same may come to his or their hands; and if any overseer, Justice of the Peace, Clerks of the Inferior or Circuit Court, or other officer fails or neglects to do so, he or they shall forfeit and pay, for ever such failure on neglect the sum of sixty collars, to be recovered by judgment of the Circuit Court had on motion of the solicitor of the district as prescribed in the fourth section of this act.
Sec. 27. Be it further enacted by the authority aforesaid, That it shall be the duty of the county treasurer of the several counties in this state, to receive all monies directed to be paid them by this act and 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 and public roads.
Sec. 28. And be it further enacted, That if any person shall be guilty of defacing or pulling down any mile post or index board and be-
ing 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. 29. Be it further enacted by the authority aforesaid, That this act shall take effect from and after the passage thereof, and that all acts and parts of acts, now in force in this state, on the subject of public Roads, Bridges, Causeways and Ferries, be, and the same are hereby repealed.
Sec. 30. And be it further enacted, That all commissioners appointed by the court, to lay out roads, and to apportion hands on any road who may refuse or neglect to perform the duty assigned him or them, shall each forfeit for every such failure or neglect the sum of ten dollars to be recovered as is provided in the fourth section of this act. Provided nevertheless, that such fine shall not be imposed when a good and sufficient excuse may be offered.
Sec. 31. And be it further enacted, That in all cases of default in working on roads, or in apportioning hands to work on public roads the defaulter may make his excuse an oath before the nearest magistrate, which shall be subscribed by said defaulter, and certified by said magistrate and the court shall determine on such certified deposition whether such fine shall be imposed.