Winslow v. Comm'rs of Perquimans County ( 1870 )

The plaintiff, under a contract with the county, had built a float bridge, which had been accepted; his claim had also been (219) audited, an order upon the Treasurer given therefor, and partial payments thereon made. About $2400 remained unpaid, and for this he brought the form of action usual in money demands, the judgment demanded being "for the sum of $2,433.58, with interest from" etc.

The defendants demurred to the complaint, upon the ground that mandamus is the only from of action proper against counties, etc.

His Honor sustained the demurrer, and the plaintiff appealed. The defendants are the Board of Commissioners for Perquimans County. The case states that, under a contract with the former County Court, the plaintiff built a certain bridge for which the County was indebted to him; that the defendant admitted the debt, and through their County Treasurer paid a part of it. The action is brought to recover the residue. The defendants demurred, and the only question is, whether a Board of Commissioners for County can be sued otherwise than in an action ofmandamus.

In my opinion, in a case where a good cause of action exists, a municipal corporation may be sued in any form appropriate to the cause of action, and its liability does not differ as respects the form of the action, from that of a private corporation, or of an individual. What will be the effect of the judgment, and how it is to be enforced, are questions not before us for decision, and having no bearing on the form of the action.

My reasons for this opinion may be classed under two heads:

1. Those going to show that the ordinary action to recover a debt is maintainable against a municipal corporation.

2. Those arising out of the nature of a mandamus, and going to show that it cannot be the only remedy.

By the Constitution, Counties are regarded as municipal corporations. Art. VII, especially Secs. 7 43. The Act of (220) 1868, ch. 20, p. 22, concerning the government of Counties, says: "Every County is a body politic and corporate." Ch. 1, Sec. 1: "It has power: To sue and be sued in the name of the Board of Commissioners." To make such contracts as may be necessary to the exercise of its powers." Sec. 3: "To liquidate and audit accounts against the County, and direct the raising of the sums necessary to defray them." Ch. 2, Sec. 6. Under our former system, the Counties were not considered corporations, but at most, only quasi corporations. Hence, the cases in which Justices of Counties have been sued by mandamus (although none of them decide that to be the exclusive remedy) are not precedents in point now, to prove that remedy exclusive; neither, for the same reason, are any, where the liabilities of merely quasi corporations are discussed, arguments in favor of that view. On the contrary, I think those cases support the view I take, viz: that a corporation, municipal, quasi, or other, may be sued in any form appropriate to the cause of action, and to the nature of the relief demanded. The leading case on the liability of quasi corporations, such as hundreds, parishes, etc., in England, and such as our Justices of the County Courts, wardens of the Poor, etc., formerly were, is, Russell v. The Men of Devon, 2 T. R. 667. That was an action on the case, against the men dwelling in Devon, to recover damages for an accident occasioned by the road being out of repair. The plaintiff failed, not because of the form of his action, but because he had no right against the defendants.

The doctrine of quasi corporations, as I understand it, is this: When a statute imposes upon an uncertain body of men, such as the inhabitants of a Hundred of County, a certain duty, without expressly incorporating them, if the duty is such that a civil liability will arise in favor of any person injured by a breach of it, the courts, in order that there may be no right without a remedy, hold the body to be a corporation quoad that liability. It is not a corporation, except by implication only, and for a single purpose, (221) therefore it is called a quasi corporation. The expression that no action will lie against such a corporation, unless given by statute, means only, unless the liability be imposed by a statute, for, there being none of common right, it can only exist by statute. But if the statute gives the right, the common law provides the customary remedy, as it did under the Statute of Winton, 13 Ed. 1, making Hundreds liable for robberies, etc., by an action on the case.

But, apart from any inference to be derived from cases of that sort, what reason can be assigned why a corporation should not be sued in any form appropriate to the cause of action? The diverse forms of actions arose out of the diversity in the nature of the rights claimed, and not out of any difference in the quality or kind of the defendants: if that difference is of any consequence at all, it only becomes so after the right has been ascertained by judgment, and when the question is as to enforcing it. Of course it is not disputed by any one, that a corporation may be sued. But in the case of a corporation authorized to sue and be sued generally, why limit the quality to a single form of action? I do not think there is any authority for doing, so, and this court has at least once, sustained another action than mandamus against express municipal corporations, such as counties now are Meares v. Com. of Wilmington, 31 N.C. 73;Brown v. Com. of Washington, 63 N.C. 514. The only reason I have heard suggested for the exemption contended for, is a supposed difficulty in enforcing a judgment in debt against a municipal corporation. It is said that the county property, the court house etc., cannot be levied on, and there is nothing else to take. That may be admitted, and the supposed difficulty still not exist. In recoveries against the hundred under the Stat. of Hue and Cry. 13 Ed. 1, the execution is levied on the property of any inhabitant of the hundred, Com. Dig. Hundred; and in Russell v. Men of Devon, 2 T. R. 667, it (222) was conceded that such would be the plaintiff's remedy if he had a right to recover. See also Tapping on Mand, 317. However this may be, and it may be a matter requiring legislation, a judgment in mandamus, when it is for the payment of money, which is said inTucker v. Justices of Iredell, 46 N.C. 451, to be its proper form, has one advantage in that respect over a judgment in debt. In McCoy v. Justices ofHarnett, 51 N.C. 488, it was said that the judgment could be collected out of the individual Justices, who might reimburse themselves by levying a tax. See also The Queen v. Vittoria Park Co., 41 E. C. L. 547. Of course, this method is equally practicable upon a judgment in debt. But it deserves consideration whether under sections 264 etc., of the C. C. P. respecting proceedings supplementary to execution, the means of enforcing payment there provided, may not be found practically so sufficient and convenient, as to make it unreasonable to resort now to the property of individuals.

There is another argument which seems to me very strong against the view that mandamus is the only remedy against a county. Before the Stat. 9 Anne, ch. 20 (Rev. Code ch. 95 § 5) if a respondent to a mandamus made a return good in law, although false in fact, the court was obliged to give judgment against the petitioner, whose only remedy then was an action on the case for a false return; Tucker v. Justices of Iredell. So that it would follow, if a county could not be sued in an action in the case, it could before that Statute escape liability altogether by the expedient of a false return; a proposition that cannot be admitted.

But if it were true, that by reason of a county having no corporate property liable to execution, a judgment in debt would be barren, it will not follow that mandamus is the proper remedy, "for if the writ were to be granted because there happened to be no chattels seizable, it would be difficult on principle to refuse it in any case where the sheriff should return nulla bona." Tapping on Mand. 24.

If I have maintained my first position, the second follows of course, for it is admitted, that mandamus will only lie when (223) there is no other adequate legal remedy; Tapping 18, Biggs,ex parte, ante 202. But there is another reason, arising out of the nature of the action of mandamus, which is seems to me is conclusive against the idea of its being an exclusive remedy against counties. It lies only to enforce a legal as distinguished from an equitable right; Tapping 18, and obviously counties may be subject to trusts or other purely equitable liabilities, which upon the doctrine contended for, would be without remedy.

I do not say that the plaintiff would not have been entitled to amandamus in this case, if his prayer were, that the defendant might be compelled to levy a sufficient tax, and thereupon to pay his debt, for that is a relief which he can obtain in no other way.

I think there was error in the ruling of the Judge.

Let this opinion be certified.