Phipps v. Morrow

McCay, Judge. Had the Ordinary of Clayton county the right under the facts set forth in this record, to purchase the land in dispute? It is settled in this State that the old Inferior Court, Ordinary, County Commissioners, etc., who have charge of county affairs, have no powers except those expressly granted, or such as arise by necessary implication from the powers actually granted: See Dent vs. Cook, 45 Georgia, 325. There is no pretense that there is any grant of a general power to an Ordinary to buy land, or that there is any necessary implication [39] of such a power from the powers granted. All that can, with any show of reason, be contended for, is that there are purposes and circumstances, in and for which, this power may very fairly be implied. And this is doubtless true. The county needs land, say for a jail, Court-house, and other public buildings ; and there is special provisions authorizing the purchase of land for a poor-farm. But this is a very different thing from the general rights of an Ordinary to purchase and hold such land for the county, as he may see fit. "We do not think he has any such power, and we think the cases we have referred to establish it. We are inclined, too, to think that perhaps, an Ordinary might, if it were necessary for the collection of a debt due the county, take land for the debt, instead of money. But this would be a very dangerous power, and if exercised, it should be only under circumstances where the necessity was obvious: See 16 Sergeant & Rawle’s Reports, 592. The Ordinary is a mere public agent. He is not the public. It often happens that these officers are neither wise nor unselfish men, and we think the laws very wisely require them to keep, at all times, in their exercise of power, within the very limits of the grant. There is nothing in this record to show that this land was bought for any of the purposes for which land is, by law, specially authorized to be bought. Nor do the facts show that it was necessary to buy this land to save the debt due from the old treasurer. It does not appear that he did not have a good bond and good security. So far as it appears, this purchase may have been a mere favor, either to the treasurer himself or his securities. Such a power we do not think exists by law in the Ordinary, and it would be very detrimental to the public interest if it did. The only question there is at all in this case, upon which there arises any doubt in our minds, is, upon whom the burden of proof lies in cases like this. Must the Ordinary show his authority, or must the party denying it show the want of authority ? The general rule, in the case of corporations and public agents, undoubtedly is that their power to act must al [40] ways affirmatively appear. They are only what the grant makes them. That is the law of their being, and they can exercise only such functions as they are by law authorized to exercise. An Ordinary in this State stands even upon a more limited footing than this. He is not the county. He is a mere agent of the county. He has certain definite, specific powers as a public officer, and he has no others. In all his acts it ought to appear that he is acting within the scope of his powers, because it is only when he is doing a public duty, cast upon him by law, that his authority to act at all exists. It is always in his power to show the circumstances surrounding his acts. As in this case, if this land was needed for any of the county purposes, or if it was necessary to take it to save a debt due the county, it is in his power to show it. We are the more ready to keep Ordinaries and public officers of the like character within this strict rule, because, by our present laws, county affairs are in the hands, generally, of one man, and the whole genius of our county organization makes it almost a public necessity that these officers shall confine themselves strictly within the limits of their express powers, or of such necessary implications as are required for the use of their expressly granted powers. Judgment reversed.