161 Ga. 743 | Ga. | 1926
Concurrence Opinion
concurring. In County of Monroe v. Flynt, 80 Ga. 489, 490 (6 S. E. 173), it was said: “The liability of the county to be sued for damages is a statutory liability. There is no liability on the county for any cause whatever, except such as created by statute. Counties are not liable at common law; and it is for the reason that the several counties of the State are political divisions, exercising a part of the sovereign power of the State; and they can not be sued except where it is so provided by statute.” The ruling there made was followed in White Star Line Co. v. County of Gordon, 81 Ga. 47 (7 S. E. 231), where it was said, after citing the aforesaid case: “We recognize the doctrine-that a county is not subject to suit unless there is some statutory provision which renders it subject.” This was a suit for damages by a steamboat company, based upon the detention of one of their steamers on the Oostanaula river. The court pertinently said: “The county could not detain a steamer upon the Oostanaula river in a way to create a cause of action against the county for it. There is no statutory provision subjecting counties to actions for detaining steamers or craft of any kind upon the water; and whether they do it by means of bridges or other obstructions, there is no redress for it against the county. Indeed the county can not do it, because there is no agency recognized by the law to represent the county in detaining steamers and committing torts of this character.” So it may be said in this case, there is no law authorizing the County of Floyd to enter into a commercial enterprise. The law does not create any agency by which the county may do this as a county, and therefore the county as such can not commit a tort. In order to make the county liable for such unauthorized enterprise there must be express statutory authority, and it is not claimed that such authority exists. Our Civil Code (1910), § 384, provides: “A county is not liable to suit for any cause of action, unless made so by statute.” Language could not be broader or more comprehensive, or more free
When public officers, in discharging duties imposed upon them by law, undertake other duties not imposed by law, although intending it to be a benefit to the public, the latter, as represented by county governments, can not be made responsible for torts or ultra vires contracts. Suppose such unauthorized enterprise, should result injuriously to the public, instead of beneficially, it could not be held that for this reason the county is not liable. Liability can not be made to rest upon whether the enterprise is successful. The test is rather whether the county has been expressly made liable. If not so, it can not be sued. No
For an able and comprehensive discussion of the principles involved herein, as applied to municipal corporations, reference is made to Cornelisen v. City of Atlanta, 146 Ga. 416 (91 S. E. 415).
Lead Opinion
1. Where a county owns a tract of land and quantities of stone and operates a quarry thereon, and has been engaged there for several years in crushing rock to be used in making and building the public highways of the county, it will be held to have been exercising governmental functions, and no liability will attach to the non-performance or improper performance of the duties of the officers, agents, or servants of the county in respect to these governmental functions. It would not affect the public character of the officers, agents, or servants of the county, that a purely incidental profit might result to' the county from its operation and management of the quarry, or because of a sale to the public of a portion of the stone crushed at said quarry.
2. In this case the county has no authority of law to engage in the business of crushing and selling rock to the public; and if its officers, agents, or servants undertake to do so, their acts are ultra vires, and no liability will attach to the county by reason of the non-performance or improper performance of such acts in such circumstances.