Dearing v. Shepherd

• Decision Date: 21 December 1886
• Citation: 78 Ga. 28
• Parties: DEARING v. SHEPHERD et al., commissioners.
• Court: Georgia Supreme Court

78 Ga. 28

DEARING v. SHEPHERD et al., commissioners.

Supreme Court of Georgia.

December 21, 1886

October Term, 1886.

Where a judgment was obtained against a county for injuries to a horse, caused by a defective bridge, which the county was chargeable with the duty of maintaining and keeping in repair, the county commissioners could be compelled by mandamus to pay it. The power conferred on such commissioners by the constitution, and the act of the legislature in pursuance thereof, to levy a tax to build and repair bridges, confers also power to raise money by taxation to pay a judgment arising from the injuries caused by the neglect to make such repairs.

( a ) The difference of opinion among the members of this court, stated in 74 Ga. 358, as to the enforcement of such a judgment, does not now exist.

County Matters. Constitutional Law. Tax. Before Judge BOYNTON. Newton Superior Court. March Term, 1886.

Reported in the decision.

SIMMS & SIMMS, for plaintiff in error.

MIDDLEBROOKS & EDWARDS, for defendants.

HALL Justice.

Dearing obtained against the county of Newton a penal judgment in a justice's court, for injuries done a horse by reason of a defective bridge, which, it seems, the county was chargeable with the duty of maintaining and keeping in repair. He demanded payment of his judgment from the county commissioners, and upon their refusal to comply with the demand, petitioned the superior court for a mandamus, and obtained an order nisi calling upon them to show cause, if any they had, why the mandamus should not be made absolute. In response to the order nisi, the only cause shown by the commissioners was, that the county had no funds in hand to meet the demand other than such as were raised from taxation and that under the constitution of 1877, art. VII, sec. VI par. II (code, §5190), the general assembly had no power to delegate to any county the right to levy a tax to pay a judgment rendered against the county for damages, and that in the absence of such a power, they had no means of raising money to pay the relator's demand; and the court, being of that opinion, refused to make the mandamus absolute and dismissed the petition for the same at the relator's cost. The exceptions taken to this judgment make the questions for our decision.

That facts may exist which would render the county liable for damages resulting from badly constructed public bridges or failure to keep them...