58 Tenn. 651 | Tenn. | 1872
delivered the opinion of the court.
The Justices of the County Court of Campbell ■county entered into a contract with Jonathan S. Lindsay to construct a second-class road from Jacksboro to the house of G. ■ W. Sharp, in Campbell county, for which they agreed to pay $650 out of the public funds of the county. Lindsay constructed the road according to contract, and the same was received by the justices, and thereupon they proceeded to assess a special tax upon property and polls to raise the funds for the payment of the work. A bill was .filed by John H. Hunter against the justices of Campbell county •contesting their power to assess and have collected the tax so assessed, and upon appeal to this court it was •determined that the County Court had no such power. Thereupon Lindsay commenced this action against Jas. H. Grant and twenty-two other justices of the County ■Court, to hold them personally responsible for the payment of the amount agreed to be paid for the road. Under the charge of ' the Circuit Judge the jury returned a verdict in favor of the plaintiff, and the defendants have appealed.
It is apparent that in making the order for building the road, and in entering into the contract with defendant for its construction, and in assessing the tax to pay for the work, the justices were acting in the capacity of agents of the county. Their liability, therefore, must depend upon the character of their ■agency. The law is that “ every county is a corporation, and the justices in the County Court assembled are. the representatives of the county, and authorized to act for it.” Code, sec. 402. Their powers, as such representatives, are defined by the statutes, and
By reference to the proceedings which took place in the County Court of Campbell, which we find in the record, it appears that on motion it was ordered that $650 be appropriated to make the road as reviewed by J. S. Lindsay and others, and that commissioners be appointed to let it out. It is clear that the County Court were acting under their general powers, as laid down in the Code, to open new or-repair or change old roads, upon the reports of juries-of view, and not under sec. 1257 of the Code, which authorizes the County Courts to provide for making certain private or local improvements therein specified-But even if the order was made under this section it was correctly decided in the case of Hunter v. Justices of Campbell county, 7 Col., 55, that the authority of the County Court under this section has no reference to works of public improvement to be undertaken, made and paid for by the county.
We have seen that neither the ordering of' a road to be made or opened, or the assuming of county taxes, is a judicial act. It follows that the action, of the^ County Court, in the present case, was legislative, and that in the exercise of their legislative functions they exceeded their power under an honest mistake as to the scope and extent of those powers.
It is well settled that a judicial officer can not be held personally liable for errors of judgment, except when they are committed in the arbitrary, corrupt and malicious exercise of an assumed judicial authority,.
The judgment is reversed.