Harbin v. Stewart , 4 Port. 370 ( 1837 )

COLLIER, J.

— Several questions are raised, by the assigament of errors ; but the first, which brings to view the right of the defendant in error, to maintain the action, we consider decisive of the case.

By an act of the legislature, passed January, the seventh, eighteen hundred and twenty-eight, the judge of the County Court, and commissioners of roads and revenue of several Counties, (among which is Au-tauga,) are authorised, whenever they, or a majority of them shall deem it necessary, to purchase and-receive title to any quantity of land, not exceeding one quarter section, the title to which is to be made to the judge of the County Court and his successors, and be the property of the County. It is further directed, that the judge and commissioners shall contract for building necessary houses, and that all subjects of charity shall be sent there, &e.

By an act of the twenty-fourth of November, eighteen hundred and thirty, the act of the seventh January., eighteen hundred and twenty-eight is repealed, as to Autauga, and it is made the duty of the judge of the County Court and the commissioners of roads and revenue of that County, “ to sell and dispose of all property, both real and per-? sonal, that may have been purchased by virtue of that act, ”on such terms as they may think the ppbliq good requires.

We have no law, which provides, fpi? the appoint-; ment of supervisors and trustees pf counties, as there is in sume of the States, neither do our laws direct who shall assert, by suit, the rights of the County— nor is the County itself, ezjjressltj invested with authority to sue or be sued. Every case, then, touching the interests of a County, must depend upon its own peculiar circumstances.

The treasurer of a County is authorised to receive all monies belonging to the County—to keep accounts of receipts and disbursements—to report to the County Court, &c.: but no authority is given him to employ coercive measures to collect public dues.

In the absence of all express legislation, in this particular case, it would seem that the judge of the County Court, and commissioners of' roads and revenue, can alone maintain the action. The act of November, eighteen hundred and thirty, authorises them to sell and dispose of, on such terms as (hey may think the public interest, demands, the property appertaining to the poor-house establishment. This provision gives a discretionary power to the judge and commissioners, to sell either for cash or on time; and mast, from the fitness of tilings, give them the right to coerce payment by suit, if it is withheld— and may, quoad hoc, be- considered as constituting •them a cot partition.

In Tilden vs Metcalf,^* the Court inclined to the opinion, that a resolve of the legislature, authorising part of a society to meet, make contracts, appoint officers and levy taxes, constitutes such society a .corporation.

The treasurer certainly derives no authority from any act of the Legislature, to maintain this action j nor can it have been imparted to him by the order of the judge and commissioners, which directs him to collect the demand in controversy. It is not such a liability as may be transfered by any form of assignment, even by persons acting in their natural capacity, so as to pass the legal right.

In as much then, as the action was brought by one pot entitled to it, the judgment is reversed. ■

* SD.iy’s C