Langley v. Taylor

95 S.E.2d 115 (1956) 245 N.C. 59

David LANGLEY
v.
George TAYLOR, Chairman, and Tommie Sparrow and J. L. Lancaster, Members Comprising the Beaufort County A. B. C. Board on June 15, 1956.

No. 31.

Supreme Court of North Carolina.

November 21, 1956.

John A. Wilkinson, LeRoy Scott, Washington, for plaintiff-appellant.

Rodman & Rodman, Washington, for defendant-appellees.

WINBORNE, Chief Justice.

In the light of the concessions made by plaintiff on the former appeal, 238 N.C. 250, 77 S.E.2d 656, it would seem that if the present action be considered an action against the Alcoholic Beverage Control Board of Beaufort County it may not be maintained by plaintiff; and if it be considered an action against the individuals comprising the Board, it may not be maintained.

Be that as it may, the principle applied in case of Town of Old Fort v. Harmon, 219 N.C. 241, 13 S.E.2d 423, 425, clearly indicates that there is no civil liability on the part of the individual members of the Alcoholic Beverage Control Board of Beaufort County for failing to require William A. Patrick to give a bond as prescribed in G.S. § 128-9, even if it be conceded that such duty rested upon them.

In the Old Fort case the action was against Harmon and the individual members of the Board of Aldermen of the Town. He, Harmon, had been appointed waterworks superintendent and tax collector. And it was alleged, inter alia, that the individuals constituting the Board of Aldermen were negligent in not requiring him to be bonded as provided by statute and the charter of the plaintiff. It is there declared that it is a recognized principle in this State that "in case of duties plainly ministerial in character the individual liability of public officers for negligent breach thereof does not attach where the duties are of a public nature, imposed entirely for public benefit, unless the statute creating the office or imposing the duties makes provision for such liability", citing Hudson v. McArthur, 152 N.C. 445, 67 S.E. 995, 28 L.R.A.,N.S., 115; Hipp v. Ferrall, 173 N.C. 167, 91 S.E. 831.

In this connection the Alcoholic Beverage Control Act of 1937, Article 3 of Chapter 18 of General Statutes, G.S § 18-41, creates a county board of alcoholic control to consist of a chairman and two other members in each county which may be permitted to engage in the sale of alcoholic beverages. And in G.S. § 18-45(o) it is provided in pertinent part that "The said county boards shall each have the following powers and duties", inter alia, "(o) To expend for law enforcement a sum not less than five per cent nor more than ten per cent of the total profits * * * and in the expenditure of said funds shall employ one or more persons to be appointed by and directly responsible to the respective county boards. The persons so appointed shall, after taking the oath prescribed by law for the peace officers, have the same powers and authorities within their respective counties as other peace officers. * * * Any law enforcement officer appointed by such county boards and any other peace officer is hereby authorized, upon request of the sheriff or other lawful officer in any other county, to go into such other county and assist in suppressing a violation of the prohibition law therein, and while so acting shall have such powers as a peace officer as are granted to him in his own county and be entitled to all the protection provided for said officer while acting in his own county."

G.S. § 128-9 provides that "The State of North Carolina shall require every peace officer employed by the State, elected or appointed, to give a bond with good surety payable to the State of North Carolina, in a sum not less than one thousand dollars ($1,000.00) and not more than two thousand five hundred dollars ($2,500.00), conditioned as well for the faithful discharge of his or her duty as such peace officer as for his diligently endeavoring to faithfully collect and pay over all sums of money received. * *"

And it is provided in G.S. § 109-2 that "every person or officer of whom an official bond is required, who presumes to discharge any duty of his office before executing such bond in the manner prescribed by law, is liable to a forfeiture of five hundred dollars to the use of the State for each attempt so to exercise his office."

Moreover, the Alcoholic Beverage Control Act of 1937 imposes no express duty upon the county boards of alcoholic beverage control or upon the individuals comprising such boards in respect to the provisions of G.S. § 128-9. The provisions of G.S. § 109-2 would seem to place the responsibility upon the officer of whom the bond is required. Hence it is contended by appellee, and properly so, that no duty rests upon the individuals comprising the county boards of alcoholic control in respect to requiring law enforcement officers appointed by them to give bonds as required by G.S. § 128-9. But if there were such duty, it would be a plain ministerial duty, of a public nature imposed entirely for public benefit, for the neglect of which individual liability of members comprising the county boards would not attach, since the statute creating the office and imposing the duty makes no provision for such liability. Town of Old Fort v. Harmon, supra.

Manifestly the individuals comprising the Alcoholic Beverage Control Board of Beaufort County were public officers, and if it be that duty devolved upon them to require Patrick, as law enforcement officer, to give bond as required by G.S. § 128-9, the act of so doing was plainly ministerial in character. A ministerial act is "one which a person performs in a prescribed manner in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment upon the propriety of the act being done." Black's Law Dictionary, 3rd Ed. Indeed "a ministerial duty, the performance of which may in proper cases be required of a public officer by judicial proceedings, is one in respect to which nothing is left to discretion; it is a simple, definite duty arising under circumstances admitted or proved to exist and imposed by law." Black's Law Dictionary.

Finally, in the absence of statute expressly imposing such liability, a public officer who is a member of a corporate or governmental body on which a duty rests cannot be held liable for the neglect of duty of that body if he acts in good faith. 67 C.J.S., Officers, § 125, p. 418. And the case on appeal fails to disclose evidence that the individual members of the Alcoholic Beverage Control Board of Beaufort County did not act in good faith. In truth the evidence tends to show that they did act in good faith.

Hence the judgment as of nonsuit will be, and it is

Affirmed.

JOHNSON, J., not sitting.

RODMAN, J., took no part in the consideration or decision of this case.