On application for rehearing the court has reached the conclusion that we were in error in the original opinion in holding that the county of Jefferson with respect to the construction and operation of its sewerage plant was acting in a ministerial capacity in the performance of self-imposed corporate duties. On further examination of the various acts of the Legislature creating the Jefferson county drainage district, and providing for the construction, maintenance, and operation of trunk sewers, purification plants, etc., we hold that the county of Jefferson is acting in a public or governmental capacity, and is therefore not liable in damages for the pollution of the water of Valley creek or its atmosphere on plaintiff's land, except as may be provided expressly by law. In the discharge of these statutory imposed duties, the county has and can have no pecuniary interests, or other interest than to discharge a duty imposed by law for the public good. The act of February 28, 1901, made Jefferson county a sanitary district, and established a sanitary commission to construct, maintain, and operate a trunk line of sewerage from near East Lake to Birmingham, and on to Bessemer, and to be ultimately emptied into Valley creek. It also authorized the construction of purification plants, and required that all the acts on the part of the commission should be done in the name of the county of Jefferson. The commission constructed, maintained, and operated the system until August, 1909, when the commission was abolished and all rights, powers, and duties of the commission were then imposed upon the board of revenue of Jefferson county, by which board the sewerage, drainage, and purification plants have since and are now being operated. The statutes have authorized the county to levy and collect taxes for the exclusive purpose of defraying expenses of constructing, maintaining, and operating the system as for public purposes. The work and operation is done for and on behalf of the public.
The constitutionality of these acts were challenged in the case of Keene v. Jefferson County, 135 Ala. 465, 33 So. 435, but they were upheld by the court upon the ground that the county, as an arm or agency of the state, when authorized by the Legislature, could build a sewerage system and issue bonds and levy taxes for the purpose of defraying expenses.
In the case of Birmingham, T. S. Co. v. Jefferson County,137 Ala. 375, 34 So. 398, it was held that the bonds issued for sanitary purposes were a general obligation on *Page 17 the part of the county, and payable out of general funds. On April 7, 1911, the Legislature passed an act authorizing the board of revenue of Jefferson county to apply portions of the sanitary fund raised by taxation to provide septic tanks, branch lines, sewers, repairs, upkeep, etc., of the sanitary system. On September 15, 1915, the Legislature passed an act authorizing all counties to improve the sanitary conditions of their counties by laying trunk lines of sewers, constructing purification plants and disposal plants, etc., and provided that such work should be done on the approval of the executive officers of the State Board of Health, thus declaring the general public policy of the state on the subject. This last act was intended and had the effect to confer on all counties of the state the same rights and powers, if not the same duties, which were therefore conferred upon Jefferson county by the acts above referred to.
Construing all these statutes together, we have reached the conclusion that it was the evident purpose of the Legislature to declare the business or duty of constructing, maintaining, and operating trunk lines of drainage and sewers, purification plants and disposal plants, etc., for sewage, a public county purpose, and that counties which are engaged in the performance of such duties or exercising such power are acting in their public or governmental capacity as mere arms or agencies of the state, and are therefore not liable as for torts, either of nonfeasance or malfeasance of county officers, agents, or employés.
As stated in the original opinion in this case, and as all the authorities hold, counties are never liable as for torts of their officers, agents, agencies, or employés in the discharge of public or governmental functions, unless expressly made so by constitutional or statutory provisions.
There is a well-recognized distinction between liability of counties, and that of cities or towns, as to these matters. Towns and cities are voluntary corporations, but counties are involuntary corporations. As was said by this court in the case of Southern Railway Co. v. St. Clair County, 124 Ala. 495,27 So. 25:
"At all periods of organized government, territorial and state [counties] have been recognized as political divisions, created and organized as governmental agencies or auxiliaries, to aid by local administration, the sovereign power, in promoting the general welfare within the territorial limits to which they are assigned. It is to these agencies the power of taxation is usually delegated. A county has been defined as an involuntary political or civil division of the state, created by statute to aid in the administration of government. It is in its very nature, character, and purpose public, and a governmental agency, rather than a corporation. Whatever of power it possesses, or whatever of duty it is required to perform, originates in the statutes creating it, or in the statutes declaring the power and duty. Askew v. Hale County,54 Ala. 639; Chambers County v. Lee County, 55 Ala. 534; Stanfil v. Court County Revenue, 80 Ala. 287; Dunn v. County Court,85 Ala. 144."
For these reasons it is the policy of the law not to hold the sovereign, nor its arms or agency, such as counties, liable as for damages in the discharge of these public duties done to preserve the health and promote the happiness and the general welfare of the people in the state or county. In the discharge of these public and governmental functions by the counties, damage or injury may often result to the citizen in consequence of the negligence of some agents or officers of the state, county, or other arm or agency of the government; but it is the law of the state and of the land that neither the state, county, nor other arm or agency of the government is liable in damages to the citizen who may suffer loss in consequence of such negligence, unless the Constitution or statute expressly so provides.
In the case of White v. Ala. Insane Hospital, 138 Ala. 479,35 So. 454, this court held that the defendant corporation was not liable in damages for the wrongful or negligent act of its agents or servants in the operation of a coal mine, which was being operated by the hospital to supply the institution with the coal; and the nonliability was placed solely upon the ground that the hospital was an arm or agency of the state, and was not liable in the absence of express statutory provision to that effect. In that case the operation of the coal mine was not a necessary incident to the construction or operation of the hospital for insane people. It was merely a matter of economic convenience, and the corporation could engage in it or not as it saw proper.
In the case of Alabama Girls' Industrial School v. Reynolds,143 Ala. 579, 42 So. 114, this court held that a mere state agency maintained for governmental purposes could not be held liable even under a cross-bill, where the institution had filed the main bill against one of its agents or agencies. In this case it was held that suit against any agency of the state was a suit against the state itself in reality, and that the institution must be held to be protected against all actions or suits as the state itself would be protected. The mere fact that the statute authorized suits against counties or corporations which constitute arms or agencies of the government does not render them liable to actions in damages in consequence of the torts of the agents or officers of such corporations. The nearest case in point that we have been able to find is that of Lefrois v. County of Monroe, 162 N.Y. 563,57 N.E. 185, 50 L.R.A. 206. In that case the county *Page 18 of Monroe was sought to be held liable for the pollution of the stream and the surrounding atmosphere by sewage from the penitentiary and almshouse, which was by the county conducted by reservoirs to a nearby farm owned by the county. The county was held liable in the trial court upon the grounds that the county held the farm as an ordinary proprietor, and that its duties as to it were self-imposed, and that it was liable for the negligent performance of the duties pertaining to the farm; that while the keeping of the poorhouse and penitentiary were public and governmental functions, the farm was not, and the county was liable for negligence of its agents or officers. The Court of Appeals of New York, however, reversed the decision of the lower court, and held that the county was not liable; that the farm was a mere incident of the poorhouse and penitentiary, and that it related to the management of public and governmental affairs, as to which the county was not liable.
A somewhat similar case is that of Wenck et al. v. Carroll County, 140 Iowa, 558, 118 N.W. 900. In that case it was held that the county was not liable in damages for the extension of a drainage ditch beyond the boundary of the district to the injury of land outside. In the New York and Iowa cases cited, the court applied the same rules of law to the construction and operation of drainage, sewerage, and purification plants that are applied when the county is engaged in constructing or maintaining roads and bridges. We have a long line of cases in this state holding that counties are not liable in damages in consequence of negligence in the construction or maintenance of public roads and bridges, except as is expressly provided for by statute, and we are of the opinion that the same rule of law should be applied to the county of Jefferson as for the construction, operation, and maintenance of trunk lines of sewerage, purification plants, etc. The county of Jefferson, in constructing and maintaining the Jefferson county drainage and sewerage system, is acting in a public and governmental capacity, and not in the performance of a self-imposed corporate duty, and it is therefore not liable for any resulting injury to private rights, except such as are imposed by the Constitution or statutes of this state. We do not know of, and are not referred to, any constitutional provisions or statutes which would render the county of Jefferson liable for any wrongs or injuries complained of in this action.
The application for rehearing is granted, and the original opinion is modified as above indicated.
All the Justices concur, except SAYRE and GARDNER, JJ., who dissent.