Gov. ex rel Haygood v. Justices of the Inferior Court , 19 Ga. 97 ( 1855 )

By the Court.

Benning, J.

delivering the opinion.

[1.] Ought the mandamus to have been dismissed ?

The argument of the side which says no to this question-,,. may, I think, be stated as follows:

1. The damage to the relator’s testator, was occasioned by the escape.

2. The escape would uot have happened, if the jail had been sufficient.

3. The jail would have been sufficient, if the Inferior Court •had not been guilty of neglect.

4. Eor a neglect in the Inferior Court, which occasions damage to an individual, the people of the county, and not the members of the Inferior Court, are liable.

5. Eor such a neglect, the people of the county may be .sued by a suit against the Inferior Court; for the Inferior ‘Court is a corporation, and one which represents tho county; ■■or the county is, itself, a corporation, by the name of the Inferior Court.

The third proposition in this argument' cannot be admitted. It may never have been in the power of the Inferior Court to •make the jail sufficient. That Court may never have had :'the money necessary to tho making of the jail sufficient. But if it never had, then that the jail was not sufficient, cannot 4)e imputed into neglect in the Court.

Whether the Inferior Court ever had the necessary money -or not, does not appear. Nothing appears, from which any inference can be drawn, as to what was the state of the coun- ■ ty treasury at or before the time of the escape; nothing from which any inference may be drawn as to what were the uses which the Inferior Court had for money; as to udiat were the -«alls that existed for county expenditure.

And it is not in the power of the Inferior Court to replenish, at will, the county treasury. That treasury gets its main supplies from county taxation; and no county tax can be laid by the Inferior Court, “ unless two thirds of the Grand Jury of tho county shall first recommend the same at a regular term of the Superior Court.” (Cobb’s Dig. 184.)

But unless it appeared that the Inferior Court had the money required for making the jail sufficient, it is to be presumed that it had not that money; for it is to be presumed, until the contrary be shown, that every public officer does bis duty. It is to be presumed, therefore, that if the Court had had the money, it would have used it, and so, have made the jail sufficient.

And of this opinion is the whole Court.

. It follows, that as things stand, the proposition, that “ the jail would have been sufficient if the Inferior Court had not been guilty of neglect,” cannot bo received as true.

But unless this proposition can be received as true, there is, manifestly, no case for a mandamus. And therefore, the judgment of the Court below dismissing the mandamus, must have been right.

This is the conclusion to which this Court come. But besides the reason just given, there is another which also operates on me individually — a reason of far greater breadth and depth.

This petition for a mandamus, is substantially a suit, not against the Inferior Court, but against the county. It is conceded, by the Counsel for the petition, that the members of the Inferior Court, in their private capacities, are not liable. But if they are not liable in their private capacities, then, in my opinion, nobody is liable. The people of the county, I think, are neither directly nor indirectly liable.

I believe that there is not to be found a decision of any Court, whose decisions are entitled to be considered precedents for this Court, to the effect that a county is liable in a case of this sort. In Russell and others vs. The Men of Devon, (2 D. & E. 661,) the “experiment,” whether, in such a case, the people of a county are liable, was tried, and the experiment failed.

And why should the people of the county be liable, in such a case, assuming now the case to be such as the argument for the mandamus represents it to be, yíz : a case in which the damage is to be imputed to the neglect of the Inferior Court ?

Is it because the Inferior Court is the agent of the people of the county ? It is of the essence of an agency, that the agent hold his office at the will of the principal — that the agent be under the absolute control of the principal. But tbe members of the Inferior Court hold their office, not at the will of the people of the county, but for a term of years fixed by law. Nor are they at all under the control of the people of the county. No. It is the people of the State of whom the Inferior Court is the agent. It is they who provided for the Court when they made their Constitution; it is they whose Governor commissions its members; it is thej, to each and all of whom its services are due; it is they who, in their sovereign capacity, can dismiss its members from office; or, at will, control them whilst in office.

But even if the Inferior Court were the agent of the county ; still, in my opinion, the county would not be liable for the misconduct of that Court. A county-is a corporation of the municipal kind, or it is not a corporation of any kind. If it is a municipal corporation, it is not liable for the misconduct of the Inferior Court, though that may be its agent; for it is a principal not denied in the discussion of this case, that a municipal corporation is not liable for the acts or omissions of its officers.

If a county is not a corporation of any kind, still less can it be liable for the misconduct of the Inferior Court; for in that case, it cannot have an agent or an officer — it cannot be a principal. In that'case, it is not a person of any sort. If a county is not an artificial person, it is no person at all; for, manifestly, it is not a natural person.

But if I did not think this were so; if I thought that a county is a corporation, and one that is liable for the misconduct of its agents, I'' could not agree that it may be sued for their misconduct by a suit brought against the very agent guilty of the misconduct. I should have' to insist that the suit should be brought in some other way. If it is possible to hold that the Inferior Court may . be the agent of the county for some purposes — purposes specially pointed out by express law, such as holding Courts and keeping in good eondition court-houses and jails, it is not, I hardly think, possible to hold that it is the agent of the county for all purposes; or, indeed, the agent for any other purpose than one which is expressly designated by law. It is not expressly said, by any law, that the county shall be sued by a suit brought against the Inferior Court as the county’s agent.

Finally: In any view of the ease, is mandamus the remedy ? Does mandamus lie against any sort of a party, to compel the payment of- unliquidated damages — to compel the payment of so much as a Jury may, at some time after the granting of the mandamus assess ? I think not. And that, I take it, is the object of this suit. It is true, that the amount which the Sheriff had to pay for the .escape of the person who was confined under the ca. sa. appears ; but there also appears enough to satisfy me that that person was insolvent; and if he was, the amount which the Sheriff paid, is not the measure of the damages which the county would have to pay, if it should have to pay any amount at all. (16 Ga. R. 423.)

I waive the question whether, under any circumstances, a judgment against one party can be taken as a liquidation of the damages which may be due from another party.