County of Schuyler v. County of Mercer

The Opinion of the Court was delivered by Purple, J.* On the 21st day of October, A. D. 1843, the defendant sued the plaintiff in an action of debt in the Circuit Court of Mercer county to recover a sum of money, which, as the declaration alleges, the defendant had expended in maintaining a pauper, who, at the commencement of thirty days immediately preceding the time she became chargeable as a pauper to the county of Mercer, was a resident of the county of Schuyler; which last mentioned county thereby became liable, upon notice having been given to remove said pauper, for such maintenance. No appearance was entered by the plaintiff; a judgment by default was rendered; a writ of inquiry of damages awarded, which was executed in vacation; returned, and judgment entered against the county of Schuyler upon the verdict of .the Jury of inquest for $112'89 and costs. The plaintiff seeks to reverse this judgment. Only one point made in the case, (being decisive of the question,) will be noticed. The Circuit Court of Mercer county, (the process having been issued to, and served in the county of Schuyler,) had no jurisdiction of the case. This will be manifest from an examination of the Act of the General Assembly, entitled, Jlctto incorporate counties,” approved January 3d, 1827. Rev. Laws, 1833, 139. The first section makes all counties then existing, or thereafter to be established, bodies corporate and politic, and authorizes them to sue, and renders them liable to be sued in their respective county names. The sixth section provides, that 6Call actions, local or transitory against any county may be commenced and prosecuted to final judgment and execution in the Circuit Court of the county against which the action is brought. Any action local or transitory in which any county shall be plaintiff may be commenced °and prosecuted to final judgment in the county in which the defendant in such action resides.3’ Independent of some special statute, counties have no common law right to sue, nor are they liable to be sued. This statute confers this right, and imposes such liability. The same Act prescribes the method of the service of process, and establishes the forum of trial, both in cases where the county is plaintiff and defendant. It is evident that unless some other statute has prescribed a different rule, counties can only bring their suits in the Courts, and in the manner allowed by this Act. The word “may” as used in the sixth section, means shall. When a county sues, the term applies in an imperative, and not in a permissive sense. Such was the manifest intention of the Legislature. The rule is, that “the word may means must or shall only, in cases where the public interest and rights are concerned, and when the public, or third persons have a claim, de jure, that the power should be exercised.” Malcom v. Rogers, 5 Cowen, 188. Thus, where a statute says that a sheriff may take bail, it has been construed to mean that he shall do so. And where it is provided that a plaintiff may assign breaches in his declaration, he must so assign them or fail in his action; because of the right de jure, of the defendant, that they should be so assigned. Such is understood to be the rule, and the illustrations given are deemed sufficient to show its practical operation. The Act of Dec. 30th, 1828, entitled, An Act to amend an Act concerning Courts of law approved January 29th, 1827, (Rev. Laws, 1833, 145,) authorizing process in certain cases to issue against defendants residing in foreign counties, and which Act, by the Revised Statutes of 1845, is incorporated into the general Practice Act, has not, at least so far as this case is concerned, any bearing upon the question. Ordinarily a law, which, in general terms, speaks of plaintiffs and defendants, applies to persons only; and States, counties and municipal corporations are not affected by its provisions, unless expressly named and brought within them. The judgment of the Circuit Court of Mercer county is reversed. Judgment reversed. Footnotes [*] Wilson, C. J. and Justices Koerner and Denning did not sit in this case.