Bell v. Commissioners of Johnston County

MONTGOMERY and DOUGLAS, JJ., concur in the result, but not in the opinion. This was an action for tort. Upon demurrerore tenus it was properly dismissed, both as to the defendants, the county commissioners of Johnston, officially as representing the county, and as to them individually. In the latter aspect, the complaint sets out no allegations of fact which amount to a cause of action against them personally for neglect of duty, under Code, sec. 711, but the averments are against the county commissioners in their corporate capacity, i. e., against the county, for their failure to establish hospitals, under Code, sec. 707 (22). It is held by an unbroken line of decisions, and reiterated at last term (Prichard v. Commissioners,126 N.C. 908), that counties, being a branch of the State (91) government, can be sued only in such cases and for such causes as are authorized by statute. In that case the Court says (page 912, 126 N.C.): "It is well settled in this State that counties (that is, the boards of county commissioners in their corporate capacity) are not ordinarily liable to actions of a civil nature for the manner in which they exercise or fail to exercise their corporate powers. They may be sued only in such cases and for such causes as may be provided and allowed by the statute. Counties are not, in a strictly legal sense, municipal corporations, like cities and towns. They are rather instrumentalities of government, and are given corporate powers to execute their purposes, and they are not liable for damages, in the absence of statutory provisions giving a right of action" — citing Manuel v. Commissioners, 98 N.C. 9, and White v. Commissioners, 90 N.C. 437. While there was dissent on other points in Prichard v. Commissioners, the Court was unanimous upon the above statement of the law. To like purport is Threadgill v. Commissioners,99 N.C. 352, which holds that counties can not be held liable for the negligence of their officers and agents, except by express statutory provision, and there is none in this State. The same rule is affirmed inMoffit v. Asheville. 103 N.C. at page 258, and is stated as the general law. Dill Mun. Corp., secs. 963, 965.

No error. *Page 62

This was an action for tort. Upon demurrer ore tenús it was properly dismissed, both as to the defendants, the county commissioners of Johnston, officially as representing the county, and as to them individually. In the latter aspect, the complaint sets out no allegations of fact which amount to a cause of action against them personally for neglect of duty, under Code, see. 731, but the averments are against the county commissioners in their corporate capacity, i. e., against the county, for their failure to establish hospitals, under Code, sec. 707 (22). .It is held by an unbroken line of decisions, and reiterated at last term (Prich*91ard v. Commissioners, 126 N. C., 908), tbat counties, being a branch of the State government, can be sued only in such eases and for such causes as are authorized by statute. In that case the Court says (page 912, 126 N. C.) : “It is well settled in this State that counties (that is, the boards of county commissioners in their corporate capacity), are not ordinarily liable to actions of a civil nature for the manner in which they exercise or fail to exercise their corporate powers. They may be sued only in such cases and for such causes as may be provided and allowed by the statute. Counties are not, in a strictly legal sense, municipal corporations, like cities and towns. They are rather instrumentalities of government, and are given corporate powers to execute their purposes, and they are not liable for damages, in the absence of statutory provisions giving a right of action”—citing Manual v. Commissioners, 98 N. C., 9, and White v. Commissioners, 90 N. C., 437. While there was dissent on other points in Prichard v. Commissioners, the Court was unanimous upon the above statement of the law. To like purport is Threadgill v. Commissioners, 99 N. C., 352, which holds that counties can not be held liable for the negligence of their officers and agents, except by express statutory provision', and there is none in this State. The same rule is affirmed in Moffiit v. Asheville, 103 N. C., at page 258, and is stated as the general law. Dill. Mun. Corp., secs. 963, 965.

No error.

We concur in the result, but not in the opinion, as we do not think that the facts of this case or the opinion in the Prichard case justify the opinion.