Plumbing Supply Co. v. Board of Education of Independent School Dist. of City of Canton

• Decision Date: 23 September 1913
• Citation: 142 N.W. 1131,32 S.D. 270
• Parties: PLUMBING SUPPLY CO. v. BOARD OF EDUCATION OF INDEPENDENT SCHOOL DIST. OF CITY OF CANTON et al.
• Court: South Dakota Supreme Court

142 N.W. 1131

32 S.D. 270

PLUMBING SUPPLY CO. v. BOARD OF EDUCATION OF INDEPENDENT SCHOOL DIST. OF CITY OF CANTON et al.

Supreme Court of South Dakota

September 23, 1913

Supplemental opinion on an application for rehearing. Former judgment modified, and order and judgment appealed from affirmed in part.

For former opinion, see 142 N.W. 260.

McCOY J.

Application for rehearing is made on the ground that in the former opinion in this case, reported in 142 N.W. 260, no decision was made upon the question of the individual common-law liability of the members of the board of education. A more careful reading of the complaint demurred to discloses that two distinct causes of action promiscuously intermingled, one against the school corporations, and one against the individual members of the board of education of such corporation, as individuals, are alleged. We are of the opinion that the demurrer was properly sustained as to the cause of action attempted to be alleged against the members of the board of education, as individuals.

We are of the opinion that there is not now and never was any common-law liability against officers of this class individually, for neglect to perform official duties. At common law the king could not be sued without his consent. Neither could any officer who represented the king. The same principle has been applied to the sovereign power of the state in this country. Members of a board of education fall within this class of officers who represent the king or who represent the sovereign power of the state in a public official capacity. Liability for negligence and suit therefor against the individual officer can only exist by virtue of an express statute creating the individual duty of such officer and also authorizing the maintenance of a suit for failure to perform such duty. No such individual duty, as charged in the complaint, has ever been imposed upon such officers as members of a board of education as individuals, in this state. From a close reading of chapter 245, Laws 1909, it will be observed that the duty to take a contractor's bond, as alleged in the complaint, is imposed on the corporation only, and not on the officers thereof as individuals, and that the suit authorized to be maintained for neglect to take such bond is against the quasi corporation, and not against the officers and individuals who act for such corporation and herein lies the distinction between the statute of this state and that of the state of Michigan, construed in Owen v. Hill, 67 Mich. 43, 34 N.W. 649, cited by appellant. By the Michigan statute the duty is imposed not only upon the corporation but also upon the officers thereof, and the suit authorized to be maintained is against both the corporation and officers.

Counties, civil townships, and school districts are classified as quasi municipal corporations (this classification is expressly recognized by chapter 245, Laws of 1909), and are regarded as public or state agencies, charged by law with the performance of public or governmental functions; that is, they are the agents of the state for the purpose of carrying into effect the functions of government, and as such are not liable to be sued civilly for damages caused by neglect to perform such duties, where such neglect is based upon acts of omission only, unless such cause of action is expressly given by statute. Abbott, Munic. Corps. §§ 954, 955, and 973; 2 Dillon, Munic. Corps. § 963; Thompson on Neg. §§ 6376-6410; Barnett v. Contra Costa County, 67 Cal. 77, 7 P. 177; Bailey v. Lawrence County, 5 S. D. 393, 59 N.W. 219, 49 Am. St. Rep. 881; Vail v. Township of Amenia, 4 N. D. 239, 59 N.W. 1092; Hydraulic Brick Co. v. School District of Kirkwood et al., 79 Mo.App. 665; Bassett v. Fish, 75 N.Y. 303.

In section 6379, Thompson on Negligence, that learned author, in speaking of the personal nonliability of officers wielding distributed portions of the sovereign power, after discoursing upon the reason for the rule that such municipal corporations are not liable for negligent acts in the absence of sovereign consent thereto, says: "Now, since the sovereign is not, without his consent, answerable before the judicial courts at the suit of any one for acts done in his sovereign or political capacity, it naturally follows that any officer who exercises, in any degree however small, or about...