Syllabus. of due process of law protects the fundamental principles of liberty and justice, adjudges, in effect, that an immunity or right, recognized at the common law to be essential to personal security, jealously guarded by our national Constitution against violation by any tribunal or body exercising authority under the general government, and expressly or impliedly recognized, when the Fourteenth Amendment was adopted, in the Bill of Rights or Constitution of every State in the Union, is, yet, not a fundamental principle in governments established, as those of the States of the Union are, to secure to the citizen liberty and justice, and, therefore, is not involved in that due process of law required in proceedings conducted under the sanction of a State. My sense of duty constrains me to dissent from this interpretation of the supreme law of the land. MR. JUSTICE FIELD did not take part in the decision of this case. WASHER v. BULLITT COUNTY. IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF KENTUCKY. Argued February 1st, 1884.-Decided March 3d, 1884. When an amended complaint demands a sum different from that demanded in the original, the amended and not the original complaint is to be looked to in determining the question of jurisdiction. At common law a county may be required or have authority to maintain a bridge or causeway across its boundary line and extending into the territory of an adjoining county. A statute of Kentucky which enacts that "County Courts have jurisdiction to ... erect and keep in repair necessary . . bridges and other structures and superintend the same, provide for the good condition of the public highways of the county; and to execute all of its orders consistent with law and within its jurisdiction" confers upon a County Court authority to erect a bridge across a boundary stream and construct approaches to it in the adjoining county. The power conferred upon County Courts of adjoining counties by statute, to construct bridges across boundary streams at joint expense is not exclusive, and does not take away the common-law right in each of the counties to crect such bridges at its sole cost. Statement of Facts. This was an action at law brought by the plaintiffs in error against the county of Bullitt, in the State of Kentucky, on a contract dated July 8th, 1878, made between the plaintiff Washer and the defendant county, for the construction of a bridge by Washer over Pond Creek, the boundary between Bullitt and Jefferson Counties. The contract, which is attached as an exhibit to the petition, was executed by Washer and J. W. Ridgway, commissioner of Bullitt County. It provided that Washer should erect an arched stone bridge with earthen embankments across Pond Creek, at the Branner foundation site, according to certain specifications, for specified prices per cubic yard of masonry and embankment. Bullitt County guaranteed payment for the whole work. The petition alleged that on August 29th, 1878, Washer transferred by his indorsement in writing the contract made by him with the county of Bullitt, and all moneys due to him thereon, to his co-plaintiffs, Danenhauer and Baecker. It averred that on December 10th, 1878, there was due to the plaintiffs from Bullitt County on the contract the sum of $5,325.14, which it refused to pay, or any part thereof, "except the sum of $1,800, leaving a balance due thereon of $3,525.14," from which latter amount was to be deducted the sum of $340.75, which the plaintiffs had agreed might be paid by the defendant directly to the Smith Bridge Company for materials furnished by it for the bridge, leaving a balance due the plaintiffs of $3,184.39. The defendant filed a general demurrer to the petition, which the court sustained, with leave to the plaintiffs to amend. They afterwards filed an amended petition, in which it was averred that before the contract mentioned in the petition was made the owners and occupants in possession of the lands approaching the bridge on both sides of Pond Creek appeared in open County Court, and relinquished of record the right of way to and across the bridge; and thereafter, and before the contract was made, the County Court of Bullitt County, being composed of the presiding judge and a majority of the justices. thereof, appointed commissioners and notified the Jefferson Statement of Facts. County Court thereof, and requested it to appoint like commissioners to contract for the bridge, which the Jefferson County Court did; and the commissioners so appointed met at the place proposed for erecting the bridge, and at the place mentioned in the contract, but could not and did not agree upon a plan for erecting the bridge, nor contract for the erection thereof; that thereupon the County Court of Bullitt County, composed of the county judge and a majority of the justices of the county, decided that it was necessary to erect the bridge, and having exhausted all means provided by statute for securing the aid of Jefferson County in building the same, decided to erect the bridge; and that, on July 16th, 1877, said County Court, composed as aforesaid, authorized J. W. Ridgway to report plans and specifications for the erection of the bridge, and W. Carpenter, the county judge, to receive and accept bids for the same; and that, in pursuance of this authority, the county judge accepted the bid of Washer; and that Ridgway, being thereunto authorized by an order of the County Court, entered into the contract with Washer appended to the petition, and that the making of the contract was subsequently ratified by orders made and entered of record by the County Court of Bullitt County, composed of the county judge and a majority of the justices of the county, directing the levy of taxes to pay for the work done under the contract, and the application of the money so raised to that purpose. The amended petition also averred that "the bridge was necessary for the public use of the people and travel of Bullitt County, and that said proceedings and orders and the contract so entered into by defendant were valid and binding upon it." By the amended petition the allegations of the original petition in respect to the payment of $1,800 for the work done under the contract, and in respect to the sum of $340.75 due the Smith Bridge Company for materials for the bridge, and the averment that there was a balance due upon work performed by the plaintiff Washer of $3,184.39, were withdrawn; and the amended petition averred that the defendant had failed to perform its contract or to pay plaintiffs for work done there Opinion of the Court. under, to their damage in the sum of $5,325.14, for which amount they demanded judgment. To this amended petition the defendant demurred on the ground that it did not state facts sufficient to constitute a cause of action. The Circuit Court sustained the demurrer, and the plaintiffs electing to stand by their amended petition the court rendered judgment "that the plaintiffs take nothing by their petition, and that the defendant go hence without day and recover of the plaintiffs its costs," &c. The plaintiffs sued out their writ of error. Mr. Augustus E. Willson (Mr. James Harlan was with him) for plaintiffs in error. Mr. James Speed for defendant in error. MR. JUSTICE WOODS delivered the opinion of the court. 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 ap peared 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 VOL. CX- Opinion of the Court. 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. |