Duke v. Mayor of Rome

20 Ga. 635

Opinion

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] Can an action in any form be maintained against a municipal corporation for an error in judgment, only when, exercising judicial functions, and where no corruption or malice is imputed ?

We think not. Just as well, upon principle, sue this or any other Court. And it is a fallacy to suppose that there is no distinction between towns and private corporations. The former are local governments, clothed with legislative, executive and judicial functions. They are imperium in imperio, and their energies should not be paralyzed while they are honestly seeking to discharge, to the best of their ability, the public duties imposed upon them as a branch of the Government.

In this corporation, the powers, greatly enlarged, which are ordinarily vested in the Inferior Court, as to licenses, are bestowed, by law, upon the Mayor and Council.

The Justices of the Inferior Court of Morgan County supposing they had a discretion'over the subject, refused to grant a retail license. This Court reversed their decision. But did the applicant or any one else suppose that the Justices had subjected themselves or the county to an action ? And why not, if the officers of this corporation, or the corporation itself, is held liable? And why not the Judge of the Superior Court who affirmed the judgment of the Justices ?

We do not believe that any such doctrine can be maintained.