Walker v. Spullock , 23 Ga. 436 ( 1857 )

By the Court —

Benning, J.

delivering the opinion.

Was the Court below right in sustaining the demurrer to the declaration ?

One of the grounds of the demurrer is, that “ no statute or law of this State, giving an action or remedy when the party was killed, or died, before suit brought, applies, or was intended to apply to the Western and Atlantic Railroad.”

The counsel for the plaintiff in error, insist, that such a ■statute of this State does apply to that road, viz: the statute of the Sth’of March, 1856,entitled, “An Act to define the liability of the several Railroad Companies of this State, for ipjury to persons or property, to prescribe in what counties they may be sued, and how served with process.”

Does this statute, then, apply to the Western and Atlantic Railroad ?

We think not. In the title, as we have seen, it speaks only of “Railroad Companies.” In the body it does no more.

The Western and Atlantic Railroad is not a Railroad Company. That railroad is a piece of property belonging to the State, and administered by the agents of the State,

It was argued for the plaintiff in error, that the statute is a remedial statute, and that the rule which requires remedial statutes to be construed liberally, would require this statute to be so construed, as to make it apply as well, to the Western and Atlantic railroad, as to the other railroads in the State.

But, in the first place, the general rule where the State is the party doing the injury, is, that there is no judicial remedy of any sort The State cannot be sued. This is the general rule.

In the second place, this act gives rights, as well as, reme- ' dies. By the old law, the railroad companies were not liable to their agents for injuries to those agents, occasioned by the negligence of their fellow-agents.

We think, then, that the act does not apply to the Westerns and Atlantic Railroad; and therefore, that the decision of the Court below, sustaining the demurrer, was right.

It may be remarked, that there exists another reason, why this act does not support the declaration. The act was not in existence when the alleged injury happened. And the words of the act, are not such as to require the act to hav® a retroactive operation.

Judgment affirmed»