Millwood v. Dekalb County

• Decision Date: 15 March 1899
• Citation: 106 Ga. 743,32 S.E. 577
• Parties: MILLWOOD. v. DEKALB COUNTY.
• Court: Georgia Supreme Court

32 S.E. 577

(106 Ga. 743)

MILLWOOD.

v.DEKALB COUNTY.

Supreme Court of Georgia.

March 15, 1899.

Counties—Liability to Suit.

A county is not liable to suit unless there is a law which in express terms or by necessary implication so declares; and this is true whether the alleged cause of action arises from the negligent performance of duties which the county authorities are compelled to perform, or a negligent discharge of duties voluntarily assumed in the exercise of a discretion vested in them by law.

(Syllabus by the Court.)

Error from superior court, Dekalb county; J. S. Candler, Judge.

Action by M. E. Millwood against Dekalb county. Judgment for defendant, and plaintiff brings error. Affirmed.

W. W. Braswell, for plaintiff in error.

Candler & Thomson, for defendant in error.

COBB, J. Mrs. Millwood sued the county of Dekalb for damages, alleging that the county authorities had exercised the right they had under the law to work the convicts in a county chain gang upon the public roads of the county; that a named road, which crossed a private way, had been worked by the chain gang in such a manner as that persons traveling the private way were liable to be injured; that in coming along such private way at night, having no knowledge of the condition in which the public road had been left at the point where the private way Intersected It, she fell, and was injured. There were allegations that the county authorities had failed to provide railings or other safeguards to protect persons who were traveling along the private way. The court, upon oral motion, at the trial term dismissed the petition, and to this the plaintiff excepted.

At common law, counties were not liable in a private action for damages sustained by any one in consequence of a failure to keep in repair the highways and bridges within the county. Russell v. Men of Devon, 2 Term R. 667. The Code of this state which went into effect on the 1st day of January, 1863, contained a provision which declared that "every county which has been, or may be, established, is a body corporate, with power to sue or be sued in any court." Code 1863, § 463. This provision was carried into the Code of 1868, and the following clause, which appears to have been taken from an act passed in 1863, was added to the section: "And all inhabitants of counties in this state, who are competent jurors in other cases, are declared and shall be holden to be competent Jurors in any case, in any court, where such counties are parties to the suit or interested therein in their capacity as corporations or quasi corporations." Code 1868, § 525. The Code of 1873, as well as the Code of 1882, contained this law in exactly the same language as is found in the Code of 1868. Code 1873, § 491; Code 1882, § 491. Does this section impose a liability upon a county to be sued in all cases where ordinary corporations are so liable under the law? Or is it simply a declaration that a county may be sued, but the right to sue is limited to those cases only where the general assembly has given the permission? This question was presented to this court in the case of Scales v. Chattahoochee Co. Ordinary, 41 Ga. 225. Judge Mc-Cay, speaking for himself and Chief Justice Brown, there said: "Counties, as corporations, stand upon an entirely different footing. They are, as we have said, mere subdivisions of the state. The people have no privileges or immunities not granted to all citizens. They are, in fact, merely convenient modes by which the state governs the people. The corporate existence cast by law on counties is not asked for, and cannot be set aside, but is the law of the state; and it cannot be inferred that, in consideration of the grant and of the privileges conferred in the charter, the people of the county have undertaken the public duties cast upon them." Again, on page 228, he says: "That 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 Code provides two cases In which counties may be sued for damages caused by neglect to keep bridges in repair. * * * It seems to us that the declaration of the Code that the county shall be liable in these two cases is a strong legislative intimation that it was not liable in other cases." Judge Warner dissented, and in his opinion he contends that the section of the Code above referred to, construed in connection with section 526 of the Code of 1868, which declares that "suits against a county must be against the inferior court, " etc., makes the county subject to suit, it being apparent to him that "it was the clear and manifest intention of thelegislature 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. Men of Devon." In Dent v. Cook, 45 Ga. 323, Judge McCay uses this language: "The county, it is true, is a corporation. Code, § 525. But this is only for certain specific purposes. This section of the Code is not even to be understood as putting counties on a footing of ordinary municipal corporations, such as cities and towns. They are created, and have special duties and special privileges, regulated by the charter of each, are sought for, and their charters may be forfeited or lost by nonuser and the judgments of courts. But the counties are subdivisions of the state, imposed upon the people for state purposes. They are, in fact, but...