Winslow v. Comm'rs of Perquimans County

RodmaN, J.

The defendants are the Board of Commissioners for Perquimans County. The case states that, undera 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 of mandamus.

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 maybe classed under two heads:

1. Those going to show that the ordinary action to recover .a debt is maintainable against a municpal 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 munici corporations. Art. VII, especially Secs. 7 & 43. The . of 1868, ch. 20, p. 22, concerning the government of Count says: a Every County is a body politic and corporate.” 1 1, Sec. 1: “It has power: To sue and he sued in name of the Board of Commissioners.” u To make si contracts as may he necessary to the exercise of its powei Sec. 3: “To liquidate and audit accounts against the Coun and direct the raising of the sums necessary to defray ther Oh. 2, Sec. 6. Under our former system, the Counties w not considered corporations, hut at most,'only quasi corp ations. Hence, the cases in which Justices of Counties hi been sued by mandamus (although none of them decide tl to be the exclusive remedy) are not precedents in point m to prove that remedy exclusive; neither, for the same reasi are any, where the liabilities of merely quasi corporations are c cussed, arguments in favor of that view. On the contra: Í think those cases support the view I take, viz: that a c< poration, municipal, quasi, or other, maybe sued in any fo: appropriate to the cause of action, and to the nature of t relief demanded. The leading case on the liability of qm corporations, such as hundreds, parishes, &c., in Englai and such as our Justices of the County Courts, Wardens the Poor, &o., formerly were, is, Russell v. The men of Devon, 2 T. R., 667. That was an action on the case, against t men dwelling in Devon, to recover damages for an accide occasioned by the road being out of repair. The plaint failed, not because of the form of his action, but because ‘ had no right against the defendants.

The doctrine of quasi corporations, as I understand it, is th When a statute imposes upon an uncertain body of me such as the inhabitants of a Hundred or County, a certa duty, without expressly incorporating them, if the duty such that a civil liability will arise in favor of any pers( injured by a breach of it, the courts, in order that there mi be no right without a remedy, hold the body to be a corpor quoad that liability. It is not a corporation, except by ication only, and for a single purpose, therefore it is called a i corporation.- TKe expression that no action will lie ist snob a corporation, unless given, by statute, means , unless the liability be imposed by a statute, for, there g nope of common right, it can only exist by statute, if the statute gives the right, the common law provides justomary remedy, as it did under the Statute of Win 13 Ed. 1, making Hundreds liable for robberies, &c., by ction on the case.

it, apart from any inference to be derived from cases of sort, what reason can be assigned why a corporation Id not be sued in any form appropriate to -the cause of n ? The diverse forms of actions arose out of the diver-'ll the nature of the rights claimed, and not out of any ’euee in the quality or kind of the defendants: if that ■ence is of any consequence at all, it only becomes so the right has been ascertained by judgment, and when [uestion is as to euforcing it. Of course it is not dispuy anj^ one, that a corporation may be sued. B.ut in the of a corporation authorized to sue and be sued gener-why limit the quality to a single form of action ¶ I do hink there is any authority for doing so, and this court i,t least once, sustained another action than mandamus Lst express municipal corporations, such as counties now

Meares v. Com. of Wilmington, 9 Ire. 73; Brown v. of Washington, 63 N. C. 514. The only reason I have l suggested for the exemption contended for, is a sup-l. difficulty in enforcing a judgment in debt against a cipal corporation. It is said that the county property, the house &c., cannot be levied on, and there is nothing o take. That may be admitted, and the supposed diffi-still not exist. In recoveries against the hundred un-he Stat. of Hue and Cry. 13 Ed. 1, the execution ied on the property of any inhabitant of the hundred, Dig. Hundred ; and in Russell v. Men of Devon, 2 T R. 667, it was conceded that snob 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 in Tucker v. Justices of Iredell, 1 Jon. 451, to be its proper form, has on advantage in that respect over a judgment in debt. In McKay v. Justices of Harnett, 6 Jon. 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 &c., 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 mcvndamms is the only remedy against a county. Before the Stat. 9 Anne, oh. 20 (Rev. Code ch. 95, s. 5.) if a respondent to a mandamos 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, f course, for it is admitted, that mandamus will only he then there is no other adequate legal remedy; Tapping 18, Biggs, expanrte, at this term. But there is another reason, rising out of the nature of the action of mandamus, which ; seems to me is conclusive against the idea of its being an xclusive remedy against counties. It lies only to enfore a igal as distinguished from an equitable right; Tapping 18, nd obviously counties may be subject to trusts or other urely equitable liabilities, which upon the doctrine con-mded for, would be without remedy.

I do not say that the plaintiff would not have been enti-ed to a mandamus in this case, if his prayer were ,that the efendant might be compelled to levy a sufficient tax, and rereupon to pay his debt, for that is a relief which he can iitain in no other way.

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

Let this opinion be certified.

Peaksok, C. J. I concur in this opinion. Settle, J. I concur in the opinion of Justice Eodman.