Summary
stating that counties are political subdivisions of the Commonwealth and enjoy sovereign immunity
Summary of this case from Henderson v. Fairfax-Falls Church Cmty. Serv. Bd.Opinion
June 13,1889.
COUNTIES — ACTIONS — WHEN MAINTAINABLE. An action cannot be maintained against a county for personal injuries, caused by the negligence of a convict of the state penitentiary, while working on a public road under direction of the county; because the county, being a part of the sovereign power, cannot be sued in the absence of a statute giving a right to sue in such cases.
Davis Harman, for plaintiff in error.
M. Woods, for defendant in error.
This is a writ of error to a judgment of the circuit court of Albemarle county, rendered on the 14th day of May, 1888. The plaintiff in error here filed her petition before the board of supervisors of Albemarle county on the 25th day of July, 1887, representing that she came to Charlottesville, in a buggy drawn by one horse, on the 21st day of April, 1887, from a point in the county of Albemarle, in company with another lady who was riding in the same buggy. In the afternoon, about 4:30 P. M., on their way home, they were driving along one of the public roads of Albemarle county, going cautiously and carefully down a hill, when they came to a point where the public road was being worked on by a chain-gang, composed of convicts out of the state-prison, or Penitentiary House at Richmond, organized by the county of Albemarle by authority of an act of assembly in that case made and provided; when, seeing a cart with a mule hitched to it moving up the hill with one of these convicts walking by the side of the cart, they turned out of the way on their righthand side as far as they could, and stopped, and called out to the convict to look to the mule; that he was very slow to do this, and so slow and negligent about it that the cart collided with the buggy, and turned it, together with its occupants, into the ditch on the" road-side, and hurt the petitioner very much, by which she had been caused suffering and loss in physician's fees, and other expenses, and that she believed herself to be permanently injured; that this convict was an employé of the county of Albemarle, and that the county was therefore liable in damages for these personal injuries inflicted upon her by the county's servant, and she demanded $5,000 for the same. This claim the board of supervisors rejected, and she appealed to the county court, when her petition was again rejected, and thereupon she appealed to the circuit court for the said county, when the judgment of the county court was affirmed, whereupon she brought the case here by writ of error.
The petition was rejected in the county court upon demurrer; so all we have to consider here is the single question whether the petition presents a case for which the county of Albemarle is liable to answer in damages. The decision of the lower courts in this case is founded upon the principle that the sovereign cannot be sued except by its own consent, as may be provided by law; and that in the exercise of its sovereign power it is liable neither for misuser nor non-user; and that a county in this state is a political subdivision of the statefor governmental purposes as prescribed by public law, and is no more than the state liable to be sued for its public acts, and that it cannot be held chargeable for the acts of an officer whose duties are fixed and prescribed by law. Suits against the state are allowed by law under certain regulations, and, in certain specified and enumerated cases, counties in this state are authorized to sue and are suable in the circuit court held for such county in their own names, but these are limited. The thirteenth section of chapter 45 of the Code of 1873 provides that "counties may sue in their own names for forfeitures, fines, or penalties given by law to such counties, or upon contracts made with them, and may be sued in their own names, in the circuit court of such county." The legislature has given a remedy in cases growing out of contracts with counties, but it has given no remedy against a county for the negligence of a public officer or servant appointed by law, and we may observe, as did Lord KENYON long ago, that the question here is "whether this body of men, who are sued in the present action, are a corporation, or qua a corporation, against whom such an action can be maintained. If it be reasonable that they should be by law liable to such an action, recourse must be had to the legislature for that purpose." Russell v. Men of Devon, 2 Term R. 671. "And even if we could exercise a legislative discretion in this case, there would be great reason for not giving this remedy."
The rules established by the courts concerning municipal corporations have but slight application to counties organized as ours are. Our counties are parts of the state; political subdivisions of the state; created by the sovereign power for the exercise of the functions of local government. As was said by a learned judge in a case not now modern, counties are "at most but local organizations, which, for purposes of civil administration, are invested with a few functions characteristic of a corporate existence.
* * * They are local subdivisions of a state, created by the sovereign power of the state, of its own sovereign will, without the particular solicitation, consent, or concurrent action of the people who inhabit them." Board v. Mighels, 7 Ohio St. 109. A municipal corporation proper is created mainly for the interest, advantage, and convenience of its locality and its people. A county organization is created almost exclusively with a view to the policy of the state at large, for purposes of political organization and civil administration, in matters of finance, of education, of provision for the poor, of military organization, of the means of travel and of transport, and especially for the general administration of justice. With scarcely an exception, all the powers and functions of the county organization have a direct and exclusive reference to the general policy of the state, and are, in fact, but a branch of the general administration of that policy, (opinion of BRINKERHOFF, J., in same case.) In that case it was sought to make the county liable in damages to one who suffered a personal injury from the neglect of the commissioners of the county in the discharge of their official duties; and the court said: "But it is said the members of the board of county commissioners are chosen by the electors of the county, and hence the board is to be regarded as the agents of the county, for whose torts in the performance of official duties the county ought to be responsible. True, the people of the county elect the board of county commissioners, but they also elect the sheriff and treasurer of the county. Are the people of the county, therefore, responsible for the malfeasance in office of the sheriff, or for the official defalcations of the county treasurer?
* * * We cannot but think that county commissioners are not agents or representatives of the county in any such sense or manner as to render the people of the county justly answerable for their neglect," even if the neglect be such as would create a civil liability against a natural person or a municipal or private corporation. "It is," he adds, "undoubtedly competent for the legislature to make the people of a county liable for the official delinquencies of the county commissioners; * * * but this has not yet been done, and we think that such liability cannot be "derived from the relation of the parties either on the principles or the precedents of the common law." See, also, Jacobs v. Hamilton Co., 4 Fish. Pat. Cas. 81; Soper v. Henry Co., 26 Iowa, 264; Treadwell v. Commissioners, 11 Ohio St. 190; Ang. A. Corp. § 8 14, 23-25; Dill. Mun. Corp. §§ 9, 32, 39, 761, 762.
In this case the county of Albemarle is sued to recover damages resulting from the alleged negligence of a state convict engaged in working on the public roads of the state, — the public highways in the county of Albemarle belong to the commonwealth, not to the county, — and of the alleged negligence of a superintendent who was appointed by the authority of a state law. No suit can be maintained against the county of Albemarle upon the principle of respondeat superior, because the relation of master and servant did not exist. Such officers are quasi public officers of the state; for, although the officer in charge was appointed by the county, yet the office and duties incident to it were created by an act of the legislature, for the general public welfare; the public roads of Albemarle county being highways of the commonwealth for the common benefit of all the people of the state who have a right to use them. We have been referred to numerous decisions concerning the character of the duty required of these and other officials similarly situated, drawing a distinction where the duty is for the benefit of the general public and where it is for the benefit of a corporation, but we do not cite them. They are more distinctly applicable to municipal corporations proper than to such organizations as counties, which are rather political subdivisions of the state, or, as sometimes denominated, " quasi corporations." Upon reason, as well as upon authority, we are clearly of opinion that the judgment of the circuit court affirming the judgment of the county court of Albemarle was plainly right, and the same will be here affirmed.