Fore v. . Feimster

HoKE, J., after' stating the case: In direct reference to the question presented, the statute makes provision as follows: “Every county, city, town, or other municipal corporation which shall let a contract for the building, repairing, or altering any building shall require the contractor for such work to execute a bond with one or more solvent sureties, payable to the said county, city, town, or other municipal corporation, and conditioned for the payment of labor done and the materials and supplies furnished for the said work, ... if the official of said county, town, or other municipal corporation whose duty it shall be to take said bond shall fail to require said bond herein provided to be given, he shall be guilty of a misdemeanor. Any laborer doing work on said building, and materialman furnishing material therefor and used therein, shall have the right to sue on said bond the principal and sureties thereof, . . . for the recovery of the amount due them respectively.” The conditions of the bond taken being only to save the obligee, that is, the county of Iredell, harmless by reason of default in complying with the stipulations of the contract, as now advised the bond does not seem to extend or apply to the claims of materialmen and laborers for sums due them from the contractor, Mfg. Co. v. Andrews, 165 N. C., 285, and the question presented is whether the members of the board of commissioners, as individuals, should be held liable to plaintiff, a materialman, for failure to take the bond in terms as required by the law. While it is the recognized position here and elsewhere that, “One who holds a public office, administrative in character, and in reference to an act clearly ministerial, may be held individually liable in a civil action to one who has received special injuries in consequence of his failure to perform or negligence in performance of his official duties,” Hipp v. Farrell, 169 N. C., pp. 551-555, in several authoritative decisions on the subject in other States it has been held that where an act of the Legislature in reference to a corporate body in its terms imposes a corporate duty, the individuals, as such, composing the corporation or charged with the general management and control of its corporate affairs shall not be held to personal liability unless expressly made so by the statute itself or unless they have been charged with or have undertaken some individual or personal duty concerning the matter. This principle declared in Bassett v. Fish, 75 N. Y., 303, has been extended to cases similar to the one before us in Blanchard v. Burns, 110 Ark., *554 528; Mounier v. Godbold, 116 La. Ann., 165; Hydraulic Co. v. School District, 79 Mo. App., 665. In tbe Arkansas case it is said: “Tbe failure of public officers to comply witb tbe statute directing tbe taking of a bond from a contractor for public work conditioned on paying all indebtedness for labor and material, upon wbicb bond any person, etc., may sue, does not render tbem individually liable.” In tbe Missouri case, supra, Bland, P. J., delivering tbe opinion, said: “It is to those corporations, and not to tbe living persons tbrougb wbom tbey manifest tbeir will and power, tbat tbe Legislature bas spoken, and wben tbe contract for tbe erection of tbe school building was let by tbe school district of Kirkwood, it became its duty to require tbe contractor to give tbe bond; tbe duty was a corporate one, and tbe failure to perform this duty was tbe negligence of tbe corporation and not of tbe individuals who compose tbe board of directors of tbe district. In tbe letting of tbe contract and in tbeir failure to take tbe bond of tbe contractors, tbe directors did not act as individuals engaged in tbe enterprise of erecting a building, but as a board of directors tbrougb wbicb tbe school district manifested its will.” Without at present giving our full approval to its application in these last three cases, tbe position finds support and becomes controlling in this jurisdiction by a proper consideration of tbe general statute law under wbicb our counties are established and exercise tbeir duties, and tbe features of this legislation by wbicb a proper performance of these duties are enforced. In chapter 23 of Revisal, sec. 1319, it is declared tbat “every county is a body politic and corporate and shall have tbe powers prescribed by statute and those necessarily'implied by law, and no others, wbicb powers can only be exercised by tbe board of commissioners, or in pursuance of a resolution adopted by tbem.” Then follows an elaborate statement of powers conferred, and in this and other-chapters and sections of tbe Revisal appear tbe penalties imposed for failure to perform those enumerated and general duties. In some cases tbe members of tbe board are made indictable; in others penalties are imposed. In certain specified instances, and particularly in cases of taking official bonds of sheriffs and tax collectors, tbe commissioners are expressly made individually liable as sureties where tbey knowingly take-such a bond tbat is inadequate or inefficient, Revisal, secs. 313 and 2914; and under penalty of forfeiting bis office, tbeir clerk is required to keep a record of tbe vote on official bonds so tbat evidence may be available as to bow each member of tbe board bas voted on these questions. These boards of commissioners, charged witb manifold and important duties in tbe governance and well ordering of tbeir counties, many of tbem legislative or quasi-judicial in tbeir nature, serving often *555 times at great personal sacrifice, should not be held individually responsible unless clearly made so by express enactment or some imperative principle of law, and while the duty in this case is no doubt ministerial, when proper weight is given to the language of the statute itself, imposing the duty on “counties, cities, towns, or other municipal corporations,” thus in terms creating a corporate duty, and to the fact that in the body of the law applicable, whenever individual liability has been heretofore desired, express provision has been made for it, we are of opinion that it is the correct interpretation of this legislation that, in its coercive features, the remedy is confined to that given by the statute itself, to wit, by indictment, and that no civil liability on the individual members of the board is intended or permissible. The entire body of law applicable to this subject, being in pari materia, is to be construed as one and the same statute, and the fact 'that the Legislature, having created in terms a corporate duty, has imposed the personal liability in the one case and failed to do so in the other is equivalent to a legislative declaration that, in the latter instance, the liability does not exist. People v. Hutchison, 172 Ill., 498; S. v. Wrightson, 56 N. J. L., 201, cited in S. v. Knight, 169 N. C., 333; Black on Int. Laws, p. 146. There is no error, and the judgment of nonsuit must be Affirmed.