41 Ga. 225 | Ga. | 1870
Lead Opinion
It is admitted that, by the Common Law, counties, hundreds, townships, districts, etc., are not liable to an action of this kind. They are subdivisions of the State Government'—-mere modes by which he State parcels out its duties of governing the people: Sherman and Redfield on Negligence and authorities qupted, 135 and 136. The point made in this case is, that the Code makes every county a corporation, with the right to sue and be sued: Code, section 525; and it is argued that this provision ex vi termini, gives to the citizen ;a right to sue the county for the non-performance of any duty, in the same manner as though the failure was by any other corporation or individual. Without doubt, such a *suit will lie against a municipal corporation: Chestnut Hill Turnpike Co. v. Rutler, 4 Sear. & Rawle, 6.
But in our opinion, a county, though a corporation, and liable to be sued, stands, in many respects, upon a different footing from cities and towns. A city has a charter giving to its citizens various privileges not granted to citizens in general. This charter also usually exempts the corporations from various public duties, cast by the general law upon other citizens. In this State these charters, whether of cities or towns, almost invariably exempt the corporations from road duty. In consideration of these privileges, these corporations undertake, as corporations, certain public duties. One of these is to keep the roads and bridges within the corporate limits, in good condition. This duty and these privileges are not forced on the people. They are - granted at their request, and they may be given up either by a surrender of the charter, or by a non-user.
Counties, as corporations, stand upon an entirely different
Again, the duty of keeping streets in repair is cast upon corporations by their charters. And it is the duty of the municipal corporation to elect such officers, and furnish such means, as will comply with their undertaking. And if the corporation fail it is liable. But there is no such duty cast by law upon counties, as such. It is true, the Code makes it the duty of certain officers to cause bridges to be built and the public roads to be kept in order, but this is a duty cast not upon the county, the cor¿ poration, but upon certain public officers. And these officers are not the officers of the “corporation.” They are officers of the State, provided for *in the Constitution, commissioned by the Governor, and not at all under the control of the county, or of the citizens of the county. They are selected under the general laws of the State, and might, if the Legislature pleased, be chosen by that body itself, or by the Governor. Indeed, one of the Road Commissioners in each district—the Notary—is selected by the Governor.
We do not see why a county should be liable for a failure of a public officer to -perform his duty as to bridges and roads, any more than upon his failure to do any other duty required by him. The law does not cast the duty upon the county but upon the officers, and they are officers of the State, although it may be that their duties are confined to the county. The State is never suable except by express enactment, and this is also true of subdivisions of the State. They are parts of the sovereign power, clothed with public duties which belong to the State, and for convenience divided among local organizations. We are the more clear in this view of the law, from the fact that the Court provides two cases in which counties may be sued for damages caused by neglect to keep bridges in repair: 1st, When the bridge is a toll-bridge set up by the county: See Code, section 709. 2d, Where the bridge is one built by contract. In tliat case the law requires the Inferior Court to take a bond from the contractor with security, faithfully to perform his work and to keep the bridge in repair at least seven years. Section 731 provides that if no such bond be taken from the contractor, the county shall be liable for damages caused by not keeping the bridge in repair. It seems to us that the declaration of the Code, that the county shall be liable in these two oases, is 'a strong legislative intimation that it was not liable in other cases.
Dissenting Opinion
dissenting.
This was ah action brought by the plaintiff against the Ordinary of Chattahoochee county to recover damages alleged to have been sustained in consequence of the bad and unsafe condition of a bridge on a public road in said county. There was a general demurrer to the plaintiff’s' declaration, which was sustained by the Court below, and the plaintiff excepted. The Inferior Courts of this State having been abolished by the Constitution of 1868, and the duties of the justices thereof having been transferred to the Ordinary of the respective counties, the question is, what were the duties and liabilities of the Justices of the Inferior Courts of the respective counties of ths State, under the present existing laws thereof, in relation to keeping in good repair the public roads and bridges, which have been transferred to the Ordinaries of the several counties. The' 1679th section of the Code declares, “that every corporation acts through its officers, and is responsible for the acts of such officers, in the sphere of their appropriate duties.” The 525th section of the Code declares, that “every county which has been, or may be established in this State, is a body corporate, with power to sue, or be sued, in any Court.” The 526th section declares, that “suits against a county, .must be against the Inferior Court.” By the 710th section of the Code, the Justices of the Inferior Court of the several counties have authority “to appoint the places for the erection of public bridges, and to make suitable provision for their erection and repairs, by letting them out to the lowest bidder, hiring hands, or in any other way that may be for the public good and agreeable to law, and to require sufficient bond, and good security for the faithful performance of all such work and contracts, and to indemnify for all damages occasioned by a failure so to do.” The 731st section provides, that all contractors for the establishment of bridges shall be liable for such damages as may occur from a want of good faith in performing their several contracts; and that if no bond or' sufficient guarantee has *been taken by the justices of the Inferior Court, the county is also liable for the damages; that is to say, the county is also liable as a corporation for the damages sustained, whether a bond of indemnity has been taken from the contractor or not. It is the duty of the corporation to take a bond of indemnity from the contractor to indemnify it against all dam
Whatever may have been the- Common Law rule as to the liability of counties to be sued for damages for neglect of duty, imposed by law on the officers thereof, under the several provisions of the Code before recited, suit may now be brought against them as corporations, and they are responsible as such corporations for the acts of their officers, either of omission or commission, in, the sphere of their appropriate duties as required by law, in the same manner as the officers of other corporations, and that the judgment which the plaintiff may recover, will be rendered against the county in its ^corporate capacity, and is to be paid by the levy of a tax on the citizens of the county, as provided by the Code. Inasmuch as the contractors, to( build public bridges in the respective counties are required by law to give bond and good security to indemnify for all damages for their failure to erect- and keep in good repair, such public bridges, the legal presumption is, that the countv is indemnified against ultimate loss, should a recovery be had in this case against the county. It -was the clear and manifest intention of the Legislature in making the several counties in this State bodies corporate, with power to sue and liable to be sued, to alter and change the Common Law rule, as held by the Court in Russell v. the Men of Devon, second term, Reports 667. The main grounds upon which that decision was based are obviated and no longer exist under the several provisions of the Code before cited. The right of action against the county as a corporation -is expressly given by statute, and a remedy is provided for the satisfaction of the judgment which may be obtained against the county for a breach of its cor
In my judgment, the dismissal of the plaintiff’s action in the Court below, on a general demurrer thereto, was error.
