Georgia Military Institute v. Simpson , 31 Ga. 273 ( 1860 )

By the Court.

Lumpkin, J.,

delivering the opinion.

The character of the Georgia Military Institute is somewhat amphibious. It was originally a private corporation. It was purchased by the State in 1857, and it is difficult to determine, now, what is its true character. It is purely a public corporation, bought with the funds of the State, and under its exclusive management and control. It has two- Boards — a Board of Trustees and a Board of Visitors — and it is no- easy matter to distinguish between the functions of the two-. Some acts are performed jointly by both boards.

By the fourth section of the Act of 1857, it is declared: “There shall be a Board of Trustees, who shall exercise all the powers and faculties usually exercised by trustees of colleges.” Does this subject the State, through this corporation to be sued? We think not. Special power was given to sue the Central Bank and the State Road. There is no such authority conferred as to this institution.

The suit was brought, in this case, against the Georgia Military Institute, and the trustees only were served. We are clear that this proceeding can not be sustained. The contract out of which this action originated was made with the Board of Visitors, and not the trustees.

By the third section of the Act of 1857 (Pamphlet, p. 63) the Board of Visitors are authorized and directed “to examine the Institute grounds and determine on the improvements necessary and proper for the objects contemplated by the Act, viz.: To provide, by law, for the military -education and training of the youth of the State — contract for, and superintend the execution thereof; and as they are completed, and at different stages of their progress, 'to call for such part or parts of the appropriation, made by the Act, for this purpose, as shall be required for the payment of the same. And, in no case, shall an advance payment be made without ample security that the money shall be appropriated to the work; also, that the same Board of Visitors be paid a reasonable compensation for their service,” etc.

The sum of $7,poo was appropriated for the purchase’ of the property, and the like sum for the improvements provided for in the section just quoted.

Thus, it will be seen, that the duty of making the necessary additions and improvements was expressly delegated to the Board of Visitors, as the special agents of the State; and that whatever other persons might belong to- the Board of Trustees, ' that board had nothing to do with this busi iness. They were not only incapable of binding the Institute, but were wholly irresponsible to the contractor respecting it.

Under the authority of the Act, a contract was made with defendant, by the Board .of Visitors, according to specifications. And it is in proof that the job could have been done pursuant to the specifications, but it is also in testimony, to make it complete, additional work and materials were necessary ; and it is for the extra work and materials — 30,000 brick and the laying of them — that this action is brought.

It is insisted by the defendant in error, that Major Brumby and Captain McConnell were appointed by the Board of Visitors to superintend this work; that they witnessed its daily progress, and made no objections, although it is conceded they gave no positive consent about the matter. It is not denied but that they were requested to interfere so far as to see that the work was properly executed under the contract, but they disclaim any authority to bind the board beyond that.

It is manifest, then, that the Georgia Military Institute, if suable at all, which we very much doubt, can not be made chargeable through the Board of Trustees, in this action. It is equally plain that the Board of Trustees have incurred no personal liability, acting — as they did — as the agents ' of the State, and within the scope of their authority. Nor can we comprehend very clearly how the Institute could be made chargeable through the Board of Visitors, upon this contract. Mr. Simpson made his estimates as though the site was a plane, where it is an inclined plane. Hence the necessity of digging the foundation deeper upon the upper side, to horizontalize the foundation, or bring it to a level. By resorting to off-sets, this could have been avoided, and the house built within the estimates. But the building would have been less secure and complete.

The appeal, therefore, for compensation 'must be to the public authority, and not to the Courts. We have no Court of Claims in this State, nor petition of right, as in England. But whoever contracts with the State trusts to the good faith of the State, unless the State sees fit to disrobe iself of its sovereignty, as it has done in the law instance cited, to wit: The Central Bank and the State Road.

JUDGMENT.

Whereupon, it is considered and adjudged by the Court, that the judgment of the Court below be reversed, upon the ground that the Court erred in not awarding a nonsuit in this case.