Every county is a body corporate, with power to sue or be sued in any court.
(Orig. Code 1863, § 463; Code 1868, § 525; Code 1873, § 491; Code 1882, § 491; Civil Code 1895, § 340; Civil Code 1910, § 383; Code 1933, § 23-1501.)
Law reviews.- For article, "Quasi-Municipal Tort Liability in Georgia," see 6 Mercer L. Rev. 287 (1955). For article, "Actions for Wrongful Death in Georgia: Part Three and Four," see 21 Ga. B. J. 339 (1959). For note discussing governmental immunity from tort liability in Georgia, see 5 Ga. St. B. J. 494 (1969).
JUDICIAL DECISIONSANALYSIS
General Consideration
Extent of power conferred.
- County, it is true, is a corporation. But this is only for certain specific purposes. Counties are, in fact, but quasi corporations, and this section of the Code is not to be understood as conferring any powers, except the right to sue and be sued, since the other powers are all conferred and regulated by other statutes and provisions of the Code. Millwood v. DeKalb County, 106 Ga. 743, 32 S.E. 577 (1899).
County is a body corporate and may sue and be sued, but the county's functions are government, and it has no power except as conferred by statute. Town of Decatur v. DeKalb County, 130 Ga. 483, 61 S.E. 23 (1908).
This section subjects the counties of this state to suit, but not to suits upon all causes of action. It does not make them generally liable to suits like individuals or as municipal corporations. Being political subdivisions of the state, they cannot be sued unless made subject to suit expressly or by necessary implication. Decatur County v. Praytor, Howton & Wood Contracting Co., 163 Ga. 929, 137 S.E. 247 (1927).
Who may sue.
- Right to sue a county is not restricted to citizens of this state. Board of Comm'rs v. Hurd, 49 Ga. 462 (1873).
Construction with Code Section36-1-4. - Former Code 1910, §§ 383 and 384 (see now O.C.G.A. §§ 36-1-3 and36-1-4) must be construed together, and those statutes must receive a reasonable construction. Decatur County v. Praytor, Howton & Wood Contracting Co., 163 Ga. 929, 137 S.E. 247 (1927).
County's violation of constitutional right raises cause of action.
- Violation by a county of a constitutional right of the citizen must, by necessary implication, raise a cause of action in favor of the citizen against the county, unless some means of redress other than suit has been afforded by the legislature. Tounsel v. State Hwy. Dep't, 180 Ga. 112, 178 S.E. 285 (1935).
Applicability of sovereign immunity in action between city and county.
- In a suit by a city against a county, seeking a portion of tax revenue raised by the county from alcoholic beverage sales, there was a threshold question of whether sovereign immunity applied in suits between political subdivisions of the same sovereign (such as the city and the county), which the trial court had not addressed; therefore, remand was required. Clayton County v. City of College Park, 301 Ga. 653, 803 S.E.2d 63 (2017).
Judicial notice.
- Courts will take judicial cognizance of the fact that each county is a body corporate. Taylor v. State, 123 Ga. 133, 51 S.E. 326 (1905).
Power to employ counsel.
- County commissioners are authorized by clear implication to employ counsel for the county. Templeman v. Jeffries, 172 Ga. 895, 159 S.E. 248 (1931).
Action by county for enforcement not authorized.
- County did not have authority to pursue tort damages based on the county's complaint alleging that unlawful acts by the defendants, including "occupation of buildings without obtaining inspections or certificates of occupancy, zoning violations, building code, safety, and fire violations, operation of businesses in a residential zone, and the like," caused the county to spend money enforcing the county's laws and protecting the county's citizens. Torres v. Putnam County, 246 Ga. App. 544, 541 S.E.2d 133 (2000).
Tort claims by county not authorized.
- When a county had recovered, identified, and properly disposed of bodies found at a crematorium, O.C.G.A. § 36-1-3 did not authorize the county to recover the county's costs of doing so as compensatory damages in a tort action against the crematorium, funeral homes, and funeral directors alleging negligence and public nuisance claims. Walker County v. Tri-State Crematory, 284 Ga. App. 34, 643 S.E.2d 324 (2007).
Relation between the county and the county attorney does not rest upon contract, but arises from appointment authorized by a legislative enactment. Templeman v. Jeffries, 172 Ga. 895, 159 S.E. 248 (1931).
Cited in City of Dawson v. Terrell County, 38 Ga. App. 676, 145 S.E. 465 (1928); State Hwy. Bd. v. Hall, 193 Ga. 717, 20 S.E.2d 21 (1942); Ayers v. Franklin County, 73 Ga. App. 207, 36 S.E.2d 110 (1945); State Hwy. Dep't v. Parker, 75 Ga. App. 237, 43 S.E.2d 172 (1947); Norris v. Nixon, 78 Ga. App. 769, 52 S.E.2d 529 (1949); Arnold v. Walton, 205 Ga. 606, 54 S.E.2d 424 (1949); Stelling v. Richmond County, 81 Ga. App. 571, 59 S.E.2d 414 (1950); Banks County v. Stark, 88 Ga. App. 368, 77 S.E.2d 33 (1953); Seaboard Air Line R.R. v. County of Crisp, 280 F.2d 873 (5th Cir. 1960); Lowndes County v. Dasher, 229 Ga. 289, 191 S.E.2d 82 (1972); Bibb County v. McDaniel, 127 Ga. App. 129, 192 S.E.2d 544 (1972); Miree v. United States, 526 F.2d 679 (5th Cir. 1976); Georgia Insurers Insolvency Pool v. Elbert County, 258 Ga. 317, 368 S.E.2d 500 (1988); Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003).
Liability of Counties
No right given to sue for any breach of duty.
- This section does not ex vi termini give a citizen a right to sue the county for the nonperformance of any duty. A county rests upon a different footing from cities and towns. Scales v. Ordinary of Chattahoochee County, 41 Ga. 225 (1870).
Liability based on statute or breach of valid contract.
- County can always be sued upon any liability against the county created by statute, or for breach of any valid contract which the county is authorized by law to make. Decatur County v. Praytor, Howton & Wood Contracting Co., 163 Ga. 929, 137 S.E. 247 (1927).
Supreme Court has long construed former Code 1933, §§ 23-1501 and 23-1502 (see now O.C.G.A. §§ 36-1-3 and36-1-4) as permitting suits against counties based on contracts made pursuant to legislative authorization. PMS Constr. Co. v. DeKalb County, 243 Ga. 870, 257 S.E.2d 285 (1979).
County not liable without constitutional or statutory cause of action.
- Constitutional provision that a county is a body corporate and this section do not authorize a suit against a county for damages when the county is not made liable for such damages by the Constitution or by statute. Revels v. Tift County, 235 Ga. 333, 219 S.E.2d 445 (1975).
Counties, as corporations, are mere subdivisions of the state, and the state is never subject to suit except by express enactment, and this is also true of subdivisions of the state. Tounsel v. State Hwy. Dep't, 180 Ga. 112, 178 S.E. 285 (1935).
County, being a political division of the state, is not liable to be sued, unless special authority can be shown; it is incumbent upon the person filing the suit to bring a case within the legislative authority upon which the person relies to bring the suit. Tounsel v. State Hwy. Dep't, 180 Ga. 112, 178 S.E. 285 (1935).
Whenever a county is by statute made liable for a given demand, an action against the county will lie therefor, though the statute does not in express terms authorize or provide for the bringing of such an action. Taylor v. Jenkins County, 116 Ga. App. 718, 158 S.E.2d 322 (1967).
County not liable for tort of guard.
- County is not responsible in damages for the tort of a guard in unlawfully beating a convict in the chain gang, or for the negligence of other guards in not protecting the convict from the unlawful beating. Tounsel v. State Hwy. Dep't, 180 Ga. 112, 178 S.E. 285 (1935).
Procedure
Injunction available against governing officials.
- Though suits by and against a county are properly brought in the name of the county, an injunction may be sought in a court of equity in an action which is brought against the governing officials of the county. Olley Valley Estates, Inc. v. Fussell, 232 Ga. 779, 208 S.E.2d 801 (1974).
All suits by, or against, a county shall be in the name thereof. Commissioners of Rds. & Revenue v. Howard, 59 Ga. App. 451, 1 S.E.2d 222 (1939).
RESEARCH REFERENCES
Am. Jur. 2d.
- 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 2, 8, 735, 740.
C.J.S.- 20 C.J.S., Counties, §§ 1 et seq., 410 et seq.
ALR.
- County as subject to garnishment process, 60 A.L.R. 823.
Power of city, town, or county or its officials to compromise claim, 105 A.L.R. 170; 15 A.L.R.2d 1359.
Right of governmental entity to maintain action for defamation, 45 A.L.R.3d 1315.