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with an uncollected tax (§ 1103), but the auditor may deduct an erroneous tax, and give a certificate thereof to the taxpayer for presentation to the treasurer (§ 1038). The treasurer may return an account of uncollected taxes with his reasons therefor. Section 1101. Finally, it is provided that, in case of any recovery from him on account of the collection of the public revenue, he shall be allowed and paid out of the county treasury counsel fees and other expenses of his defense in the suit and the amount of any damages and costs ad judged against him, all of which is required to be apportioned ratably by the county auditor among all the parties entitled to share the revenue so collected. and deducted from the shares or portions of the revenue at any time payable to each, including as one of said parties the state, as well as the counties, townships, cities, villages, and school districts, and other organizations entitled. Section 2862. It will be thus observed that in Ohio the system is made plain and harmonious. The treasurer collects for all taxing authorities, and, in case of damages recovered against him, is given a sure indemnity. At the same time a convenient method is provided, whereby a taxpayer who has been unlawfully assessed may secure a return of his money. At the time our legislature adopted the provision in respect to actions to recover taxes illegally collected, it was undoubtedly perceived that the revenue laws were somewhat dissimilar to those in Ohio, that a treasurer was not given iudem nity when he had dispensed the funds collected by him; and not desired to interfere, or alter the provisions already in force concerning the collection of the public revenue, devised the more simple method of adding the proviso to the effect that, after the municipal corporation for whose use and benefit it had been collected, had received the tax, it should be made the respondent in an action for a recovery of such tax. We think a county is included in the designation "municipal corporation" as used in the proviso. While it is true that, in a restricted sense, and possibly by way of distinction, the term "municipal," as applied to a corporation, is generally understood to refer to such subordinate organizations as a city or town, nevertheless it is not improper, nor at all uncommon in legal parlance, to include a county within the designation "municipal corporation." That was conceded in the majority opinion in the Powder River Cattle Co. Case.

A further obstacle to declaring that the county is embraced within the meaning of the proviso was deemed to arise from the words, "for whose use and benefit it was levied and collected." It was thought that state and school district taxes were not collected for the use and benefit of the county. If that were so, we are unable to perceive why the statute would not authorize an action against the county for the money which was actually received for its use and benefit, and why it should be allowed, as to them, to hide behind the fact that there might be other money which was not held for its benefit. The words quoted, however, must receive a reasonable construction. In view of other statutory provisions, to which reference will be made, we are not inclined to apply to such words any narrow

and confined meaning. As to state taxes, the county is made responsible for all which are levied, and it is not permitted to receive credit except for such assessments as are certified to be double or erroneous. A particular tax is not returned itemized to the state, but payments are made on account of the county's actual statutory liability. Such taxes are, in a certain sense, collected for the use and benefit of the county. It could not escape settlement with the state by an absolute refusal to collect the taxes. To relieve itself from the burden imposed upon it by law, it must collect and pay over the taxes. Whatever may be the regulations existing between the county as an organization and the school districts within its boundaries, it levies taxes for the support of all the schools, and the special district taxes which have been legally voted by each district. The treasurer collects them, and is the custodian thereof until lawfully paid out to the district treasurers upon the apportionment and order of the county superintendent as to the common -school tax, and according to law as to the special district taxes. Before schooldistrict treasurers are entitled to receive any of the money, they are required to furnish bonds, to be approved by the board of county commissioners in each case, who also fix the amount thereof. The school money is referred to in the statutes as in the county treasury. Laws 1895, chap. 44. For its use and benefit, in accordance with law, the school moneys are collected and received for the county. Not, it is true, to assist in carrying on the ordinary functions of county government, but, as an agency of the state, to levy and collect taxes to support and maintain the school organizations located within its limits. In that sense we conceive that the language was used in the proviso. Such a construction does no violence to the words employed, but recognizes the various capacities in which the county acts, and the duties devolving upon it, as well as the power with which it is clothed. Neither does that construction work harshly upon the county corporation, as we shall attempt to show. Section 3821, Rev. Stat., was thought to be in conflict with the statute above considered. We are not of that opinion, but believe that it harmonizes with it, and tends to explain it. The two sections should be so construed that both shall stand, if possible. That section is as follows: "In all cases where any person shall pay any tax, or any portion thereof, that shall thereafter be found to be erroneous or illegal, whether the same be owing to clerical errors or other errors, the board of county commissioners shall direct the treasurer to refund the same to the taxpayer, or, in case any real property subject to taxation shall be sold for the payment of such erroneous tax, the error in tax may at any time be corrected as above provided, and shall not affect the validity of the sale, but such property shall be redeemed by the county as hereinafter set forth." The provision for redemption referred to is found in S 3833, which, in substance, requires the county to repay to a purchaser at tax sale of any land sold by mistake or unlawfully the amount to which he would have been entitled had the sale been legal; and the treasurer, unless the invalidity is not his fault, is made liable to the

606

WYOMING SUPREME COURT.

be credited; and this court has held that such
credit shall be extended upon its account,
whenever it is certified to the proper state of-
State v. Laramie County Comrs. (Wyo.)
ficer.
33 Pac. 992, 35 Pac. 929. It is therefore mani-
fest that, should the county refund such erro-
neous tax, it would be entitled to a credit upon
its account with the state.

These two sections, I should not be compelled, if illegally exacted, county for the amount. 3821 and 3833, must be construed together. to refund them. The county is a debtor to the The former impresses upon the county board state for such taxes, but for all erroneous taxes the absolute duty to direct the treasurer to re-charged against it the law requires that it shall fund any tax found to be erroneous, and, in case land has been sold for such erroneous tax, the same may be corrected in the same manner, or "as above provided," which means by diIf recting the treasurer to refund the same. sold, then the one entitled to payment is the purchaser, and the amount to be refunded is specified and fixed by the provisions of § 3833. Now, it is reasonably clear that the thing to be The statute does not say refunded is the tax. that the same shall be returned by a payment out of the general fund of the county, or out The tax is to be reof any particular fund. funded. That tax will have gone into various funds. The command, therefore, as I understand it, is to take the proportionate amounts from each fund. This conclusion was reached in Iowa under a similar statute. Lauman v. Des Moines County, 29 Iowa, 310; Stone v. Woodbury County, 51 Iowa, 522. See also George's Creek Coal & I. Co. v. Allegany County Comrs. 59 Md. 255.

Under the decisions in the Powder River Cattle Co. and Searight Cattle Co. Cases a person who has paid an unlawful state and county tax is granted a remedy, but one which consists in pursuing an officer individually, who may only have done his duty skilfully and faithfully; and, if that official is unable to respond, the taxpayer is still remediIf the amount is collected from the of less, and the right given to him is an empty one. ficer or his representative, they are caused to bear a loss which belongs in justice to the public. Thus the remedy would often be without advantage to anyone, and unjust whenever it The erroneous character of the tax may be should possess any merit. Under the construcadjudged by the courts in a suit for a recovery tion which we believe to be the only true and of the amount paid, or by some other author- correct one, all those disadvantages depart, all ized proceedings, or the board itself may dis- the provisions become harmonious, and without cover that it is invalid. In either event, it is any straining of language. It enforces the to be refunded to the person entitled thereto. manifest legislative design. For the reasons The legislature having constituted the county aforesaid, it is our opinion that an action to reauthorities and officers the agency to assess, cover back taxes, when they have been paid by levy, and collect the tax, and having designated the collecting officer into the county treasury, In the cases where the acthe county treasurer the custodian of the pro- | should be brought against the county in its ceeds, at least temporarily in all cases, it was corporate name.

certainly entirely competent for the lawmak- tion is to be brought against the collecting ofing power to confer upon the board the author-ficer, he must be sued individually. That ity-nay, more, to impose upon it the duty-seems to be the plain meaning of the statute, of directing the custodian to return the tax, and it was so held in Ohio. 13 Bull. 334; The effect of a decision of the supreme court and in doing so to take it from the respective Ratterman v. State, 44 Ohio St. 641. funds into which it had gone. It might have SO construed. Parties been expressed by language more in detail, but construing a statute renders it the law for we think it has done so by the general terms the time being as employed. Suppose the requirement had been have a right to act upon such a decision, and Could there no injury ought to be allowed to result, by that the treasurer refund the tax. be any question but that he should take it reason of a dependence thereon, if the defrom the funds of which it formed a part? cision is subsequently changed, any more Where is the distinction if the legislative com- than in case of a repeal of a statute. Holmand is that the action of the treasurer shall linshead v. Van Glahn, 4 Minn. 190 (Gil. 131). be directed by the board? Part of the tax col- Until the decision now rendered, since the lected being for state purposes, the statute re announcement of the court in the cases herequires it to be refunded. The treasurer, by inbefore referred to, the law of the state has direction of the board, is made the agency to been as set forth and adjudged in those cases, return it. It is not to be expected that the at least to the extent that no one should be inidentical moneys received shall be refunded in jured by relying thereon. Consequently, any any event, or under whatever construction case which has been brought against the colThere is, at all times, lecting officer in his individual capacity should $3821 might receive. more or less money in the various funds which be permitted to proceed without objection on are to be dispensed to other organizations. If that ground. This case is not against the offinot, the repayment can be made when any such cer individually. Whether the fund shall be replenished. amount of interest, and costs which may be paid to a purchaser of lands at tax sales, and which is required to be paid to him by the county on discovery of the illegality of the sale, is to come out of the different funds, or is to be paid by the county itself, to be reimbursed by the liability of the treasurer, if it exists is a question which need not now be determined. It is not clear to us upon what theory it can be truly said that, as to state taxes, the county 39 L. R. A.

We have not arrived at the conclusion to depart from the rule heretofore announced except after mature reflection and a profound sense of an imperative necessity. This disposes of all the questions except the eighth, which, under our former decisions, is not a proper one for reservation.

To the first question, we answer that, if the sheep of the plaintiff were brought into this state for the purpose of being grazed, they were subject to taxation in the year 1895. To

the second question: We have stated in this, plaintiff was afforded by law an opportunity opinion the legal principles which should ap- to be heard, as set forth in this opinion. The ply to a consideration of the fact whether or taxes were not illegal for any reason mennot the animals were driven in for grazing purposes. It is not proper for us to determine the fact itself in this kind of proceeding. To the third question, our answer is in the negative To the fourth question: The payment was involuntary. To the fifth question: The sit.

tioned in such question. To the sixth question: Chapter 61, Sess. Laws 1895, was constitutional. Our answer to the seventh question has been given above.

Corn, J., concurs. Knight, J., did not

GEORGIA SUPREME COURT.

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*To a declaration substantially alleging that the plaintiff sought to purchase a particular kind of loaded cartridges, and was negligently given by defendant's agent to sell certain loaded cartridges which were represented to be of the kind asked for, and which were alleged to be very similar in size, make, and mark to those desired, but were in reality of different caliber, and that on account of such difference in caliber the plaintiff (he being without fault or negligence in handling the cartridges so purchased, and while using the

same properly) was injured by the premature explosion of one of them,-Held: (1) That it was error to sustain a demurrer for want of a cause of action. (2) That the allegations in the declaration authorized a submission of the case to a jury to determine the facts involved,-among them whether or not the injury could have been avoided by the plaintiff in the exercise of ordinary care.

(January 21, 1897.)

ERROR to the of defendant in

RROR to the City Court of Atlanta to re

an action brought to recover damages for personal injuries alleged to have been caused by defendant's negligence. Reversed.

The facts are stated in the opinion. Messrs. Glenn & Rountree and J. A. Noyes, for plaintiff in error:

It appearing from the allegations in the declaration that the damage resulted directly and proximately from defendant's breach of duty to, and implied contract with, plaintiff, the damages suffered are not too remote to be recovered.

Ga. Code, 3073, 2944, 2946; 1 Sutherland, Damages, pp. 22, 47, 61; Burrrows v. March Gas & C. Co. 39 L. J. Exch. N. S. 33, L. R. 5 Exch. 67; Lannen v. Albany Gaslight Co. 44 N. Y. 459; Gilson v. Delaware & H. Canal Co. (Vt.) 36 Am St. Rep. 807, note.

The declaration makes out a case of liability precisely similar to those cases in the books,

*Headnote by LITTLE, J.

NOTE.-As to liability for negligence in sale of dangerous articles, see Lewis v. Terry (Cal.) 31 L.

R. A. 220, and cases cited in note thereto.

where a manufacturer or a vendor of danger ous articles, guns, pistols, explosives, drugs, poisons, etc., are held liable to the vendee, or even to a third person, for damages arising from the negligent manufacture or sale of such articles.

Schubert v. J. R. Clark Co. 49 Minn. 331, 15 L. R. A. 818; Thomas v. Winchester, 6 N. Y. 397, 57 Am. Rep. 455; Norton v. Sewall, 106 Mass. 143, 8 Am. Rep. 298; Elkins v. McKean, 79 Pa. 493; Wellington v. Downer Kerosene Oil Co. 104 Mass. 64; Bishop v. Weber, 139 Mass. 411, 52 Am. Rep. 715; George v. Skivington, L. R. 5 Exch. 1; Marsh v. Webber, 13 Minn. 109; State, Hartlove, v. Fox, 79 Md. 514, 24 L. R. A. 679; Jeffrey v. Bigelow, 13 Wend. 518, 28 Am. Dec. 476; French v. Vining, 102 Mass. 132, 3 Am. Rep. 440: Heaven v. Pender, L. R. 11 Q. B. Div. 503; Bishop, Non-Cont. L. § 413; Powers v. Harlow, 53 Mich. 507, 51 Am. Rep. 154; Lewis v. Terry, 111 Cal. 39, 31 L. R. Á. 220.

Messrs. Rosser & Carter for defendant in error.

Little, J., delivered the opinion of the

court:

Smith brought an action against the Clarke Hardware Company to recover damages for

personal injuries alleged to have been sustained

by him by reason of the explosion in his face of a cartridge purchased from said company. In his declaration the plaintiff alleges, substantially, that he applied to an employee of the defendant company for a particular kind of loaded cartridges, to wit, No. 38 caliber, for a Winchester rifle, and that defendant's agent to sell negligently gave to plaintiff certain loaded cartridges, which were represented to be of the kind and caliber asked for, and which were in fact very similar in size, make, and mark to those desired, but were in reality of different caliber, and manufactured and intended for use in altogether a different firearm. It is alleged that notwithstanding the cartridges actually sold to plaintiff were marked on the end "S. & W." and the cartridges desired were marked "W. S.," yet the letters on the end of each were of the same size, and both kinds of cartridges very nearly the same size, differing only in the fact that the spread of the ball in the cartridges sold to plaintiff was broader than that in the cartridges asked for, in consequence whereof plaintiff did not detect the difference until after he

was injured; that petitioner was in no way negligent in the purchase of said cartridges, nor in failing to detect that they were not the right kind of cartridges, nor in his use of said carting is to so conduct it that no injury will reridges in his rifle at the time the injury occurred; nor was he in any way to blame for such injury. To this action the defendant demurred upon the grounds (1) that no cause of action is set up in said petition; (2) the petition shows upon its face that the negligence of the plaintiff caused the damage complained of in said petition; (3) the petition shows upon its face that by the exercise of ordinary care the plaintiff could have avoided the injury which he complains of in said petition. This demurrer was sustained by the court below, and the action dismissed, to which ruling the plaintiff excepts.

dertaking there arise by implication of law certain rights and duties. The duty incumbent upon the party engaged in the undertaksult to others; and upon every person holding himself out to the public as willing to act in a certain capacity, professional or otherwise, and who has induced persons to commit themselves or their property to his care, there is, by implication of law, a duty to use proper care in his conduct towards them, and, as a consequence of this duty, there is a liability to answer for injuries caused by a breach of it. Id. p. 420, and authorities there cited. Thus, an attorney is liable for negligently giving improper advice (Moorman v. Wood, 117 Ind. 144); a physician, for negligence in the treatment of his patient (Babbitt v. Bumpus, 73 The second and third grounds of the demur- Mich. 331). It has been held that a caterer is rer were obviously untenable. It is inconsist- liable for injuries caused by poisonous food ent to admit all the allegations of the plaintiff's negligently furnished by him at a public enterpetition, as the demurrer does, and yet contend tainment; the court holding that since he asthat the petition shows on its face that the neg- sumed to act as a caterer, and was employed ligence of plaintiff caused the damage, or that as such, a duty was implied to him by law to the injury could have been avoided by the ex-perform with due care that which he had unercise of ordinary care on the part of the plain- dertaken. Bishop v. Weber, 139 Mass. 411, 52 tiff. It is manifest from the allegations con- Am. Rep. 715. So, also, an apothecary who, tained in the petition that it cannot be ad- by his servant, negligently sold, as and for judged, as matter of law, that the plaintiff was tincture of rhubarb, two ounces of laudanum, negligent. The character of his allegations is was held liable for damages resulting from such that, with defendant's liability in other such negligent sale. Norton v. Sewall, 106 respects established, the points raised by the Mass. 143, 8 Am. Rep. 298. In the case of second and third grounds of the demurrer are Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. questions of fact, which should be submitted 455, it was held that a dealer in drugs and medito and determined by a jury. We therefore cines who carelessly labels a deadly poison as a come to consider the single question, Does the harmless medicine, and sends it, so labeled, inpetition set forth a cause of action? Has the to market, is liable to all persons who, without plaintiff suffered at the hands of the defendant fault on their part, are injured by using it as the consequences of a tort arising by reason of such medicine in consequence of the false the negligence of the latter? Inasmuch as label; the court further holding that the liabilthere can be no actionable negligence in the ity in such case arises, not out of any contract absence of the existence of a duty, and inas- or direct privity between him and the person much as there can be no tort unless in a trans- injured, but out of the duty which the action of this character the law imposed upon law imposes upon him to avoid acts in their the defendant the duty of exercising ordinary nature dangerous to the lives of others. The care in the sale of such goods to purchasers, it imminent danger attending the sale and use of becomes material only to consider whether such drugs, and the great difficulty of detectthere was a duty imposed by law upon the de- ing their poisonous character, impose upon fendant to exercise such care relatively to the dealers the duty of exercising the highest deplaintiff. As stated, there can be no case of gree of care known among practical men to the negligent injury of one person by another prevent injury from the use thereof. 2 Shearm. in the absence of a legal duty from the person & Redf. Neg. § 691. While, in the sale of inflicting the injury to the person on whom it cartridges, ammunition, and other devices to is inflicted. 16 Am. & Eng. Enc. Law, p. 415, be used in firearms, the degree of care required T8, and authorities there cited. It must be a may not be so great, nor the scope of liability duty implied by law, although it may arise so far reaching, as in the sale of poisonous out of contract. Bishop, Non-Cont. L. SS 132, drugs, by reason of the fact that the dangers 133. In actions of tort no duty is considered attending the former are not so imminent as in law except a legal duty, and all legal duties those attending the latter, there being in all exist from implication of law. A contract probability much less difficulty in detecting merely creates this implication. Whart. Neg. the real kind and character of the one than $ 24. In his treatise on Negligence (§ 24) Dr. would be true as to the other, yet it will not be Wharton has well defined a legal duty to be contended that cartridges and kindred devices "that which the law requires to be done or are not dangerous explosives; and, being such, forborne to a determinate person, or to the pub- they cannot be blindly and indifferently dislic at large, and is correlative to a right vested tributed to purchasers, without regard to the in such determinate person, or in the public.' purpose for which they are to be used, or the The obligation involved is not a moral obliga- age and discretion of the person to whom they tion, but it is the obligation imposed on every are sold. One holding himself out to the pubmember of society by law so to conduct him- lic as dealing in such articles at least owes to self and use his property as not to injure purchasers the duty of exercising ordinary care others. Sic utere, tuo ut alienum non ladas. 1 in the matter of placing into their hands the Am. & Eng. Enc. Law, p. 417. In every un-kind and character of goods for which they

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contract. This duty, of course, exists in a higher degree with respect to latent dangers which are hidden from the eye of the nonex pert, and without the knowledge of the un informed. In the present case we think the defendant owed to the plaintiff the duty of exercising ordinary care in the matter of select ing and selling to him the kind of cartridges asked for. It is claimed that there was a breach of this duty, by reason of the fact that the defendant negligently sold to plaintiff a different cartridge, which was dangerous to be used in the rifle for which he endeavored to buy the cartridges. The demurrer admits the negligent sale, and, holding as we do that such negligence constituted a breach of duty due by

the defendant to the plaintiff, and further holding that it is a question of fact, and not of law, as to whether the plaintiff could, by the exercise of ordinary care, have detected the real character of the cartridge, or otherwise avoided the injury of which he complains, it follows that the court erred in sustaining the demurrer and dismissing the plaintiff's action. We think the allegations in the declaration authorized the submission of the case to a jury, to determine the facts involved,-among them, whether or not the injury could have been avoided by the plaintiff in the exercise of ordinary care.

Judgment reversed.

NEW JERSEY COURT OF ERRORS AND APPEALS.

City of CAPE MAY, Plff. in Err.,

V.

CAPE MAY, DELAWARE BAY, & SEW-
ELL'S POINT RAILROAD COMPANY.

(60 N. J. L. 224.)

*1. The city council of Cape May by an ordinance granted permission to a *Headnotes by NIXON, J.

railway company to lay its tracks on certain streets (naming them), and also to construct all necessary switches and turnouts. Held, that turnouts built in pursuance of such authority, unless it clearly appears that the authority has been exceeded, are not such an obstruction of the streets as to warrant their summary and forcible removal by police intervention without notice or a hearing.

2. Notice, either actual or constructive, companies the right to construct their railroads

NOTE.-Municipal control over public nuisances, upon public streets and highways created by street upon the streets, and invested the local government railroads and other electrical companies.

I. Street railroads.

II. Telegraph and electrical poles, etc.

III. Steam and electricity.

Upon the question of municipal control over nuisances in highways and streets in general, see note to Hagerstown v. Witmer (Md.) - L. R. A.--.

Cases in which the power of a municipality to proceed in equity for the abatement of public nuisances created by street railroads and electrical companies will be found specifically treated of in a later note.

I. Street railroads.

of such cities both with the fee of the soil and the exclusive control over the streets, and if, in the exercise of their proprietary rights and police regulations over such streets, the authorities should determine that iron rails and their use are a legitimate street improvement, the court cannot control their authority in that respect, as both the city and company derive their rights and privileges from the sovereign power of the state, which cannot be supposed to authorize that which amounts to a nuisance. Milburn v. Cedar Rapids, 12 Iowa, 246.

Under such circumstances such railroads cannot be adjudged obstructions or annoyances which can be declared nuisances. Milburn v. Cedar Rapids, 12 Iowa, 246.

To the same effect are the following cases: Illinois & M. Canal v. Haven, 11 Ill. 554; Moses v. Pitts

Generally it may be said that the municipal authorities have a right, under their police power, to pass all necessary laws for the purpose of regulat-burgh, Ft. W. & C. R. Co. 21 Ill. 516; Lexington & ing the use of the streets by railroad companies, and that all such laws and regulations are valid as being for the benefit of the public safety and general welfare, so long as they do not contravene any constitutional provisions. It is not, however, within the province of this note to consider or define the extent of such power, except in so far as it relates to the question of nuisances relating to the operation of such roads.

In the principal case of CAPE MAY v. CAPE MAY, D. B. & S. P. R. Co. turnouts, built pursuant to an ordinance giving the company power to lay tracks on certain streets in the city, are not such obstructions as will justify their summary and forcible removal by the police without notice, and notice should be given before any ordinance interfering with such city rights can be adopted, although a resolution declaring such a turnout an obstruction, and directing the employment of counsel to take legal measures to compel its removal, is not objectionable.

O. R. Co. v. Applegate, 8 Dana, 298, 33 Am. Dec. 497; Hamilton v. New York & H. R. Co. 9 Paige, 171; Drake v. Hudson River R. Co. 7 Barb. 508; Chapman v. Albany & S. R. Co. 10 Barb. 360; Hentz v. Long Island R. Co. 13 Barb. 646; Wetmore v. Story, 22 Barb. 414.

The legislature have power to authorize the building of a railroad upon a public road, and such power is indubitable. Danville, H. & W. R. Co. v. Com. 73 Pa. 29, 38; Philadelphia & T. R. Co.'s Case, 6 Whart. 25, 36 Am. Dec. 202; Green v. Reading, 9 Watts, 382; Henry v. Pittsburgh & A. Bridge Co. 8 Watts & S. 85; O'Connor v. Pittsburgh, 18 Pa. 189. And as the legislature has, under the general police power, the constitutional right to authorize a city to grant the right to construct a railroad track, upon which steam engines are operated, across and through the streets, it cannot be said that the obstruction of the street in such a manner is a nuisance per se. Port of Mobile v. Louisville & N. R. Co. 84 Ala. 115, 119; Perry v. New Orleans, M.

Where the lawmaking power has given railroad ❘ & C. R. Co. 55 Ala. 413, 28 Am. Rep. 740.

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