Hutcherson v. Robinson

Bleckley, Chief Justice. The sheriff of Carroll county, having a warrant to execute against a lady charged with lunacy, hired of Robinson a hack, team and driver, telling him to debit the county with the expense. This was done without authority from the ordinary or from the county commissioners. The bill was $4, and the commissionei’s refusing to pay the same, Robinson brought his action against them in their official capacity, and recovered,— first by judgment of the magistrate, and again by the verdict of a jury, in the magistrate’s court. The case was carried by certiorari to the superior court, the error alleged being, that under the facts there was no liability, either upon the county or commissioners. The certiorari was overruled. We think the sheriff’had no legal power or authority to make a contract of hiring and engage the credit of the county for payment. He was a mere ministerial officer, and was not clothed by the law with any discretion to create county debts. Under the constitution of 1877, it is no easy matter to involve a county in debt, though the amount be small. Even before that constitution was adopted, this court, in Dougherty County vs. Kemp, 55 Ga. 252, held that the sheriff, while engaged in his legal duties, is not the agent or servant of the county, but of the law, and it was there ruled that even 785 under the order of the judge of tbe superior court he bad no power to make tbe county tbe bailee of a horse, and that tbe county was not responsible for tbe loss of a horse bailed to an officer for tbe purpose of serving process. It is true that tbe code (§§1864, 1864a) declares that tbe expense of confining a lunatic shall be paid out of tbe county funds if tbe estate of tbe lunatic be insufficient for tbe purpose, and that in such event tbe ordinary shall draw bis warrant upon tbe treasury of tbe county for such sum or sums as shall be actually necessary or-requisite to defray tbe expense of trying a commission of lunacy, and of carrying or conveying tbe insane person to tbe lunatic asylum ; but this does not contemplate that tbe sheriff or other ministerial officer shall be tbe judge of what expenses, if any, shall be incurred. On tbe contrary, that question is expressly confided to tbe ordinary. In tbe present case, tbe ordinary gave no warrant or permission for hiring tbe conveyance, nor has be ever ratified, confirmed or approved tbe act. Tbe expenses contemplated are such as appertain to bis court or bis official proceedings, and be is to be tbe judge of whether they are actually necessary or not. No officer can incur expenses at tbe charge of tbe public, without some express permission of law so to do; and persons dealings with officers must take notice of tbe extent of their powers, and must abide tbe consequences of allowing them to transcend their powers in business transactions. Tbe court erred in not sustaining tbe certiorari. There can be no recovery in tbe case; and as the question involved is one of law solely, tbe superior court is directed to make a final disposition of it, in .conformity to tbe statute applicable to writs of certiorari of this class. Judgment reversed.