Scales v. Ordinary Of Chattahoochee County

• Citation: 41 Ga. 225
• Parties: YEWELL D. SCALES, plaintiff in error. v. ORDINARY OF CHATTAHOOCHEE COUNTY, defendant in error.
• Decision Date: 30 June 1870
• Court: Supreme Court of Georgia

41 Ga. 225

YEWELL D. SCALES, plaintiff in error. v. ORDINARY OF CHATTAHOOCHEE COUNTY, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, June Term, 1870.)

Case against County. Demurrer. Before Judge Johnson. Chattahoochee Superior Court. March Term, 1869.

Scales brought case against the Ordinary of said county, in which he averred, that in 1869, "there was, and thence hitherto has been and still is, a certain public road in said county, known as the road leading from Jamestown to Massey's church, etc., the same heading a certain creek, in said county, known as the Oswitchee creek. At the place where said road crosses said creek there was on the day and year aforesaid, a certain bridge which had been erected by said county, for the convenience of persons passing along said road, which was and still is a public bridge, and the usual and only proper means by which persons passing along said road, across said creek. On the day and year aforesaid, it was *and still is the duty of said defendant to proceed for the execution and repair of all public bridges, and the said bridges should be kept in repair by hands subject to road duty, or to work on roads, etc. Yet said defendant, well knowing the premises on the day andyear aforesaid, wrongfully and neglectfully, suffered said bridge to fall into decay, and to need repairs, and did not nor would repair or rebuild the same or cause the same to be repaired, in consequence of which said negligence and improper conduct of the said defendant, " said plaintiff\'s wagon loaded with "Chill-Killer, " was thrown into the creek and broken, his team was injured, etc. His damages being fully set out as to manner and quantity, he prayed process in the usual form against "said defendant."

This petition was demurred to upon the ground, that the facts did not make a case against the county of Muscogee, and against the county, plaintiff was seeking the recovery. The Court sustained the demurrer and dismissed the case.

That is assigned as error.

Peabody & Brannon, for plaintiff in error, cited Irwin's Code, secs. 525, 526, 707, 710, 1672; 2 Sald. K. R., 609; 3 Hill's N. Y. R., 614-619; 38th Ga. R., 346.

No appearance for defendant.

McCAY, J.

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 quoted, 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, give's 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 differentfooting. 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 cast aside, but is the law of the State, and it can not 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, 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...