Hudson v. McArthur

Manning, J. Passing tbe question as to tbe misjoinder of tbe parties plaintiff, and tbe joinder of defendant Aman as a party defendant — the plaintiffs having each a separate, and not a joint, cause of action against tbe defendant commissioners, if they have any cause of action at all, and tbe cause of action against Aman being distinct from and arising from totally different facts from that alleged against tbe defendant commissioners — we proceed to consider if tbe complaint states facts, sufficient to constitute a cause of action in favor of any one, or all, of tbe plaintiffs against tbe defendant commissioners. Tbe argument addressed to us in support of bis Honor’s ruling is rested upon sections 2812, 5241 and 5250, Revisal of 1905; that these sections impose mandatory duties upon tbe boards of county commissioners, and that defendants violated these duties in the manner of making tbe settlement with Aman, tbe sheriff, and these violations of duty directly caused tbe loss to plaintiffs, to recover which they have brought this action against tbe defendants. Tbe liability of tbe board of commissioners for a failure to-comply in good faith with sections 2812 and 2813, Rev., is declared by section 2814, Rev., to be “for all loss sustained in the-collection of taxes, on motion to be made by tbe solicitor of the-district.” Tbe evident purpose of tbe section is to further protect and safeguard tbe public revenue and to further assure its honest collection and application by subjecting tbe commissioners to liability if they fail to require tbe proper bonds from tbe collecting officer; and this is further enforced and some449 wbat extended by section 313, Rev., wbicb provides that, “Every commissioner who approves an official bond, which, he knows to be, or which by reasonable diligence he could have discovered to have been, insufficient in the penal sum, or in the security thereof, shall be liable as if he were a surety thereto, and may be sued accordingly by any person having a cause of action on said bond.” The bond of the defaulting sheriff in the present case was not deficient either in the penal sum or in the security thereof; the plaintiffs as his sureties have made good his default, and paid the money to the proper authorities. The obligation of the bond has been met and'the bond has been discharged. This action is not on the bond. If any one of the defendants permitted the defendant Aman, on the first Monday of December, 1902, or on the first Monday of December, 1904, these being the first Mondays in December next after his election and he being a former sheriff, to give his bonds or re-enter upon the duties of his office until he had produced before the board the receipt in full of every such officer for taxes which he had or should havé collected, then such commissioner, under section 3590, Rev., was guilty of a misdemeanor and also liable to the penalty of $200 for each offense, “to be paid to any person who shall sue for the same.” Bray v. Barnard, 109 N. C., 44; Lee v. Dunn, 73 N. C., 595. If the defendants failed to require such receipts on the first Monday in December, 1904, the plaintiffs were not endamaged in the particulars alleged, for they only became sureties on the bond then given, and the default of their principal, for which they allege they were compelled to answer on that bond, occurred after-wards in his failure to honestly account for the taxes for the fiscal years 1905 and 1906. So that if the commissioners failed to observe the requirements of section 2812, Rev., such failure did not injure plaintiffs in the manner alleged by them, though such failure might have subjected them to indictment and to an action for the penalty prescribed by the statute. Coming now to the consideration of sections 5241 and 5250, Rev., and the particulars in which it is alleged these sections were violated by the defendant commissioners in their settlement 1 September, 1906", with Sheriff Aman, we quote the pertinent provisions of them. Section 5241 provides: "Provided, the sheriff or tax collector shall not collect the taxes for any years until he shall have settled in full -with the State and county for the taxes of the previous year (if he was sheriff or tax collector), and gives the bond required by law; and if upon examination the commissioners are not satisfied with the solvency of the surety to said bonds, they may require new bonds [450] to be given. Before receiving the tax duplicate be shall produce the receipts of the State and county, if be was the sheriff or tax collector, for- the previous year, to the clerk of the board of commissioners, and in the event the sheriff fails to produce the aforesaid receipts or give the required bond, the board of commissioners shall appoint a tax collector, who shall give bond, etc.” And section 5250, Rev., provides: “Provided! further, that it shall be unlawful for any sheriff or tax collector, in accounting with the board of county commissioners for either the State or county .taxes, to exhibit or present in said county any money not actually derived from the collecting of taxes, and any such sheriff or tax collector so offending shall forfeit a penalty of $500, one-half of which shall belong to any person who shall sue for the same, and the other half to the county in which the sheriff resides.” It is alleged as a fact, and the demurrer admits the fact, that the settlement by the county commissioners with Sheriff Aman in September, 1906, was not made in the manner directed by these two sections. It is contended that the statutes are mandatory, and the acts of the county commissioners were ministerial, leaving in them the exercise of no discretion, and that the delivery of the tax duplicates to the sheriff enabled him to embezzle the funds to the injury of the plaintiffs, and, therefore, the defendants are liable. If we concede the mandatory character of the statutes, and the ministerial character of the acts to be done by the commissioners, involving the exercise of no discretion, we do not think the injury to plaintiffs complained of necessarily or by direct connection follows. In S. v. Harris, 46 Am. Rep., 169; 89 Ind., 363 (in which case the doctrine stated by Judge Cooley in Raynsford v. Phelps, 43 Mich., 342, is disapproved as not in harmony with the weight of authority and reason), the Suéneme Court of Indiana says: “It is not enough in any case for a plaintiff, who seeks to recover for an injury caused by the negligence of another, to show simply injury and negligence; he must also show that there was a breach of duty owing to him. This general rule applies with peculiar force to persons who sue for injuries caused by official misconduct. It is not every person who sustains an injury from the negligence of a public officer that can maintain an action on the officer’s bond. In general, a public officer is liable only to the person to whom the particular duty is owing, and the ruling question in all cases of the kind is as to whether the plaintiff shares the breach of the particular duty owing to him. It is not sufficient to show a general public duty, or a duty to some other person directly in [451] terested.” Judge Cooley says: “But tbe sheriff,can only be liable to- tbe person to whom tbe particular duty was owing the party to whom be is bound by tbe duty of bis office.” In Shearm. and Red. on Negligence (3 Ed.), sec. 174, it is said: “It is a general rule that, whenever an action is brought for a breach of duty imposed by statute, tbe party bringing it must show that be has an interest in the performance of tbe duty, and that tbe duty was imposed for bis benefit.” In this connection tbe same learned writers, at section .166, observe: “In speaking of tbe liability of nonjudicial public officers to a civil action by private persons, it will be found convenient, if not indeed necessary, to a proper understanding of tbe decided cases, to make a distinction between those officers whose duties are of a general public nature and who act for the profit of tbe public at large, and that other class of officers who are appointed to act, not for tbe public in general, but for such individuals as may have occasion to employ them for a specific fee paid.” It is clear, at least,, that tbe county commissioners belong to tbe first of tbe two classes- — -“officers whbse duties are of a general public nature and who act for tbe profit of tbe public at large.” Tbe above authorities state tbe doctrine upon which plaintiffs must depend to maintain this action as strongly in their favor as tbe decided cases and text-writers warrant; but even so stated, we do not think tbe action can be maintained against tbe defendant commissioners. Tbe acts complained of were public acts, done by tbe commissioners in their corporate capacity. Tbe clear purpose of these statutory requirements was to impose duties for tbe benefit and protection of tbe public revenue, to provide more vigilant measures for its safety for tbe public good and benefit. They prescribe public duties to be discharged by tbe commissioners. Tbe protection of tbe plaintiffs, as sureties upon tbe sheriff’s bond, is clearly not within tbe purview of tbe statutes;' tbe taking of a bond with approved security was, itself, to further assure tbe public. To make good tbe default of tbe sheriff was tbe express obligation of tbe bond signed by tbe plaintiffs; it was tbe guarantee of bis honesty and fidelity. By tbe statutes,' to enforce promptness, accuracy and completeness of settlements, penalties are imposed both upon tbe commissioners and tbe sheriff. Tbe commissioners are made liable also to indictment. These liabilities are imposed by express statutes. Tbe Legislature has not yet deemed it wise or proper to impose tbe additional liability upon tbe commissioners contended for by plaintiffs, and in tbe absence of express [452] statutory enactment, or of some well-settled principle of law constraining us to- so bold, we do not tbink the commissioners are liable to the plaintiffs. In addition, we do not tbink the injury suffered by plaintiffs and the loss sustained by -them was the necessary, direct or immediate result of the defendants’ acts. They do not stand in the relation of cause and effect; the turning over the tax books was simply a condition, the injury was a post hoc, but not an ergo propter hoc. The direct and immediate and only cause of the loss sustained by plaintiffs was the dishonesty and embezzlement of the sheriff — their principal, whose honesty and fidelity was the express obligation of their undertaking. The defendant commissioners could have done all they did, and yet no injury to the plaintiffs resulted; they could have observed the statutes to their very letter, and the loss to the plaintiffs have been the same. The sheriff could have embezzled the county funds with or without a strict settlement. There is, therefore, no causal connection between the acts alleged and the loss sustained. In addition to the authorities cited, the following sustain the conclusion we have reached: 2 Abbott on Municipal Corporations, sees. 672 and 673; McConnell v. Dewey, 5 Neb., 385; School Dist. v. Burgess (Neb.), 89 N. W., 609; Mechem on Public Officers, secs. 598, 599; Press Brick Co. v. School Dist., 79 Mo. App., 665; Bassett v. Fish, 75 N. Y., 303; Heeney v. Sprague, 11 R. I., 456, 23 Am. Rep., 502; 1 Suth. on Dam., 56; Nelson County v. Northcate, 6 L. R. A., 230. In its final analysis, to sustain the contentions of the plaintiffs would be to make the members- of the -board of county commissioners liable to the sureties on the official bonds of the sheriffs and other officers, whose performance of duty they are required by statute to supervise, if the commissioners fail to discharge their statutory duties in the manner prescribed by law, and this to be held regardless of whether a particular duty was owing to the particular person complaining, and whether there was any causal connection between the violation of the statute and the injury complained of. We cannot so hold. In our opinion, the demurrer filed by the defendant commissioners should have been sustained, and the order of his Honor overruling it is Reversed.