Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-11-01
DEorsroNs OF THE sUPREmE ooURr.
OFFICIAL.
Opinions OF the supreme Court OF the stat
OF Tennessee at KuOxvilAes SepeemDe
Terms 1880.



Nelson VI. The Justices Of Carter Ccunty-
This was an application to the Circuit Court Of
Carter for a mdaddsnuS. From the petition 1t ap-
pears.that the plaintiff in error was Judge Of the
County Court Of Carter and in that capacity, he
procured repairs to be made upon the Court House
in the year 1851 amounting to $23 "a, which re-
pairs are alleged in the petition to have been neces
sary, and without which 1.-The Courts could not be
held therein with comfort or convenience This
account having been duly audited and certified by
the plaintiff County Judge, was presented to the
County Court at a quarterly term, but a majority
of the Justices refused to allow or to make an ap-
preparation for the payment thereof.
The petition was demurred to, and the demurrer
was sustained. Two questions are submitted for
cur determination. First had the County Judge, as
such, power to bind the Court by his individual
contract for repairs without the assent OF the JUS
tees? Secondly if so, does the Circuit Court pos
sess the power 10 coerce the County Court TO DIS
charge this liability?
As regards the latter question we feel no difficult
ty. The principle OF the case Of Newman vs. Inc
Justices of Scott County, Sneed 695, we think is
decisive OF this question. Wherever positive le-
gal liability is fixed upon the County Court, its DIS
| charge may be enforced BY the Circuit Court by
virtue of its general experimenting power all
| inferior jurisdictions
Upon the other question there is more room for
doubt.
By the act of 1856 ch z5s. which created the
Office Of County Judge" that functonary is invest
ed with various highly important powers and duties.
By the Sth section it is declared that the County
Judge shall be accounting officer and general agent
of the county, and as such, he shall have power,
and it shall be his duty first to hare the care and
custody of all county property, except such as is by
| law placed in the custody Of other officers, &cn
! 1t is highly important that the Court House and
other public buildings Of the county, shall be kept
IN proper repair and 1t seems TO have been wisely
considered by the Legislature, that the power and
duty of doing so should be lodged elsewhere than
in the aggregate body of the magistracy of the
county. Hence by the act of lS4l, oh. Is, sec 2,
the Justices of each county expressly empower
ed TO employ persons ITO keep in repair the Court
/ House and prison I}y the Code Sec ALB the
other person specially appointed by the Court for
that purpose, and he shall prevent trespasses, eX-
cude intruders and keep it and the grounds attach
ed thereto in order; reporting from time to time the
repairs required, and the expense to the County
! Court
The case before us occurred before the adoption
OF the Code. and must be governed by the previous
| law. We have cited the provisions Of the Code
which was enacted after the repeal of the act OF
1856, creating the Office of County Judge to show
that the Legislature has constantly maintained the
policy Of placing the Court House and public build
ings In the care of some responsible person, instead
of leaving this important matter to the collective
body of the Justices. We have that by the act
of 1856, the County Judge is constituted the gen
eral agent of the county" and is intrusted with ju
risdiction and powers in several respects, above
and independent of the Justices altogether Pc Is
not only expressly invested with the power, but the
duty is positively enjoined upon him, to take upon
himself the ''care aud custody" of all public build
ings and property Of the county, not by law placed
in the custody of other officers. This provision is
in substance incorporated into the Code, section
above cited.
Now what does the duty of taking "carer of the
| Court House necessarily imply? From the plain
import of the words of the act and the manifest in
tentlon of the Legislature. before alluded TO- this
question is of no very difficult solution. TC
take care" of the Court House. in the of this
law, is among other things 10 keep It in proper or
der and repair.
In general whenever the power to do an act Is
expressly conferred, the means necessary and prop
er to the execution of the power, are also implied
ly given.
Would it not be absurd to say that particular
officer, the County Judge, should be responsible
for keeping the Court House in proper repair, and
yet deny to him the necessary means Of doing so
or in other words, leave it to the uncontrolled dis
erection or caprice of the Justices Of the County
Court, to furnish the means, to refuse to do so
Being charged with the power and duty of keep
ing and taking care of the Court House, independ
emily of the Justices of the County Court, the Officer
must also be held to possess the power, lndepend
entity of them, and upon his own individual respOn
sibility, to contract for such repairs or improve
ments shall be necessary and proper, and the ex
pense of such necessary and proper repairs th'
Justices of thesCounty Court cannot refuse to dis
charge. The power Of the Justices TO levy taxes
and to make appropriations for the discharge O
county liabilities. does not in this instance carry
with it the implied power to control the proper GIN
Ger in the discharge of his duty in contracting foi
suitable and necessary repairs The officer is t
procure the repairs TO be made, and the Justices
are simply TO provide the means of payment. But w
are be understood intimatng that the Justi
ces bound to pay for all the repairs that the off
Ger may contract for. The powers of the officer
extend only to such repairs as in the given case
may be proper, and beyond this the Justices are not
| bound to go in making appropriations.
| The judgment will be reversed. and peremptory
| mandamus will be awarded. MCKINNEY.
A true copy. Test: c. w. NELSON. Clerk.
"A KNOCK Down ARcrxESr. The Jackson Whig