Humber v. Dixon
94 S.E. 565
Ga.
1917
Check Treatment
George, J.

The commissioners of roads and revenues of Stewart County, on complaint of certain citizens of the county, filed a petitiоn with the prison commission of Georgia for the discharge of the warden in charge of the convicts in that county. They employеd attorneys at law to represent them, before the prison commission, the attorney regularly retained by the commissioners оf roads and revenues having refused to do so; and this action, by certain other citizens and taxpayers of Stewart county, is to enjoin the payment of the fee and expenses of the attorneys incurred in that service. The judge of the superior court denied the interlocutory injunction.

The facts are not in dispute. The commissioners of roads and revenues of Stewart county emрloy the convicts, State and county, in the working of the public roads of the county. The prison commission of Georgia has the еxclusive power, under the law, to appoint and remove the warden. The petition before the learned judge below authorized him to find that the grounds of complaint made against the warden were substantial and not merely frivolous, and that the petition fоr his removal was made in good ‍​‌‌‌​​‌‌​‌​​​​‌‌‌‌​‌‌​​​​​​​​‌‌‌​‌‌​​​‌‌​‌‌‌‌‌​​‍faith. Whether the evidence submitted to the prison commission' sustained the charges against the warden does not appear. The expenses incurred by counsel and the fee charged for the services rendered by them are not alleged to be unreasonable or excessive. The citizens and taxpayers are proper parties to the cause, and the whole question is: Have the commissioners of roads and revenues the authority to bind the county by the contract with the attorneys and to pay them the fee and expenses?

“The General Assembly shall not have power to delegatе to any county the right to levy a tax for any purpose, except for educational purposes . . ; to build and repair thе public buildings and bridges; to maintain and support prisoners; to pay jurors and coroners, and for litigation, quarantine, roads, and exрenses of courts; to support paupers and pay debts heretofore existing; to pay the county police, and. tо provide for necessary sanitation.” Constitution of Georgia, art. 7, sec. 6, par. 2 (Civil Code, § 6562). *482It is the contention of the citizens that the proceeding before the prison commission of Georgia to remove the warden in charge of the convicts engaged in thе working of the public roads in Stewart county was not “litigation,” within the meaning of the ‍​‌‌‌​​‌‌​‌​​​​‌‌‌‌​‌‌​​​​​​​​‌‌‌​‌‌​​​‌‌​‌‌‌‌‌​​‍word as used in the paragraph of the constitution .just quоted. In this contention we agree. “The word 'litigation/ as there employed, can only mean such litigation as the county, in its corporate capacity as a public corporation, is interested.” Koger v. Hunter, 102 Ga. 76 (29 S. E. 141). The petition to remove the warden was filed in the name of a majority of the commissioners of roads and revenues, and not in the name of Stewa.rt county. Suits by or against a county must be in the name of the county. Political Code (1895), § 342. An action or proceeding by named persons as commissioners of roads and revenues is not an action by the county. Bennett v. Walker, 64 Ga. 326; Arnett v. Board of Commissioners, 75 Ga. 782; Jackson v. Dougherty County, 99 Ga. 185 (25 S. E. 625). But ihis is a technical objection to the proceeding before the prison commission to remove the warden; and we are not satisfied to rest our judgment upon such ground alone. Section 1192 of the Penal Code of 1910 gives to the prison commission the authority to appoint such wardens as may be'necessary, and § 1198 provides that “the commission shall have lawful authority to summarily discharge, for cause, any employee having either care or charge of said convicts, or said convict camps.” The power, and therefore the duty, is vested exclusively in the prison commission to dischаrge or remove a county warden. The county, in its corporate capacity, has no authority to employ an attоrney, at the expense of the taxpayers, to influence ‍​‌‌‌​​‌‌​‌​​​​‌‌‌‌​‌‌​​​​​​​​‌‌‌​‌‌​​​‌‌​‌‌‌‌‌​​‍the action of the prison commission in this regard. The constitution аnd the laws in pursuance thereof do not contemplate the necessity for such action. Certain of the powers of the prison commission of Georgia are executive, certain are administrative or ministerial; and the authority to discharge еmployees for cause, if judicial in character, is so only in a very limited sense. The prison commission, in the exercise of thе authority “to summarily discharge for cause” a warden in charge of the convicts, is bound to act with good judgment, that is, judiciously; but while the exercise of sound judgment is acting judiciously, it is not necessarily acticig judicially. Merely that a matter is determined in the manner *483usually employed in a judicial proceeding does not, of itself, render such, proceeding litigation, and certainly not within the meaning of the quoted provision of the constitution of this State.

Nor can it be said that the proceeding before the prison commission fоr the removal of the warden was road building, or the exercise of a power incident to road building, in any proper sense оf that term. Many things mediately and remotely ‍​‌‌‌​​‌‌​‌​​​​‌‌‌‌​‌‌​​​​​​​​‌‌‌​‌‌​​​‌‌​‌‌‌‌‌​​‍connécted with road building, and more or less conducive to the proper building of public roads, are nevertheless not such “building or repairing of the public roads” as to authorize a county to expend the public funds thеrefor.

Within the enumerated purposes of the constitutional provision . quoted above, a large discretion in the expеnditure of public money is necessarily vested in the officers of the county who have charge of its affairs; but the public-road funds оf the county can only be disbursed by such authorities for the specific purposes for which the taxes were levied. We are fоrced to conclude that the proceeding before the prison commission, instituted by a majority of the county commissionеrs, was not “litigation” in which the county, in its corporate capacity, was interested; nor" was it road building, or the exercise of a power incident thereto, within the meaning of the constitution and the laws passed in pursuance thereof, conferring upon counties the right to levy taxes for the purpose of building or repairing public roads. Compare DeVaughn v. Booten, 146 Ga. 836 (92 S. E. 629).

Judgment reversed.

All the Justices concur, except Athinson, J., who ‍​‌‌‌​​‌‌​‌​​​​‌‌‌‌​‌‌​​​​​​​​‌‌‌​‌‌​​​‌‌​‌‌‌‌‌​​‍dissents from the? ruling in the first headnote.'