Scales v. Ordinary of Chattahoochee County

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 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 [228] 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 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 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. [229] Without doubt, it is in the power of the Legislature to make the county liable to such an action as this record sets forth. We do not think the law declaring the county to be a corporation has that effect. Judgment affirmed. BROWN, C. J., concurred, but wrote no opinion.