Prichard v. Commissioners of Morganton

• Citation: 36 S.E. 353,126 N.C. 908
• Parties: PRICHARD et al. v. COMMISSIONERS OF MORGANTON et al.
• Decision Date: 14 June 1900
• Court: United States State Supreme Court of North Carolina

36 S.E. 353

126 N.C. 908

PRICHARD et al. v. COMMISSIONERS OF MORGANTON et al.

Supreme Court of North Carolina

June 14, 1900

Appeal from superior court, Burke county; Bowman, Judge.

Action by Nancy Prichard and others against the commissioners of Morganton and others to recover for the burning of a dwelling house as a health precaution. From a judgment sustaining a demurrer to the complaint, plaintiffs appeal. Modified and affirmed.

Faircloth C.J., and Furches, J., dissenting.

Where a complaint pleads a statute which has no existence, and is not a law of the state, a demurrer to the complaint admits only the facts alleged therein, and has not the effect to admit the existence of the statute.

S. J Ervin and Avery & Ervin, for appellants.

J. T Perkins, for appellees.

MONTGOMERY J.

The plaintiff Nancy Prichard, a tenant in dower, brought this action against the commissioners of the town of Morganton, the board of commissioners of Burke county, and R. T. Claywell and Robert Ross, as their agents and servants, to recover of them damages for burning the house in which she lived, and certain personal property therein as a nuisance, because of alleged smallpox taint and infection, for injury and damage to growing crops on the same, and for unlawfully and wrongfully depriving her of her liberty by seizing and carrying her to a pest house for smallpox patients, and keeping her there for weeks, in restraint of her freedom and contrary to her will. The persons entitled to the remainder interest in the real estate are the other plaintiffs in this action. The commissioners of Morganton, for one cause of demurrer to the complaint, say that the complaint fails to allege that the tortious acts complained of were within the scope of the powers conferred on said corporation by its charter, and that it appears on the face of the complaint that the acts complained of are not within the scope of the powers of the corporation, and, for another ground of demurrer, say that, if the acts complained of had been done under the express direction of the town commissioners, the conduct of the commissioners would have been ultra vires. The board of commissioners of the county demurred to the complaint, and, among the grounds assigned, these two seem to be the chief: (1) "That the acts alleged to have been done by these defendants, and constituting the plaintiff's cause of action against these defendants, are not within the scope of the corporate powers and duties conferred upon or delegated to these defendants by law; (2) that said acts are not alleged to have been done or performed under or in pursuance of any order, resolution, or direction of these defendants, and these defendants are in no way liable." The defendant Claywell demurred because the complaint alleged that he was merely acting as the agent of the other defendants, and that there was imputed to him, as an individual, no unlawful or wrongful act.

We have examined the charter of the town of Morganton (Priv. Laws 1885, c. 120), and find no authority given to the town commissioners to burn or destroy any house or residence. In section 37 the town commissioners are authorized to take such measures as they may deem effectual to prevent the entrance into the town, or the spread therein, of any contagious or infectious diseases; and under those powers they are permitted to cause to be destroyed or disinfected such furniture or other articles as shall be believed to be tainted or infected with any contagious or infectious diseases, or which there shall be reasonable cause to apprehend will generate or propagate diseases, and may take all other reasonable steps to preserve the public health, and for this purpose may use any money in the treasury. That statute certainly does not even purport to give to the town commissioners the right to burn a house in which a family infected, or thought to be infected, with a contagious disease, resides. The right of the commissioners to destroy the property, indeed, is not admitted by the plaintiffs, but it is intimated that they acted under the authority of the act of 1893, c. 214, § 22; but upon examination of that section it appears that reference is there made to the powers and duties of the superintendents of health of the several counties. No powers or rights are there given to the town commissioners or to the board of commissioners of the county. It is there provided that, in cases where the county superintendent of health declares that a nuisance exists on premises, it shall be removed or abated at the expense of the town, city, or county in which the offender lives, in case of his inability to remove it, with the proviso that the expense chargeable to the town, city, or county shall not exceed $100. In reference to the powers conferred by law upon boards of county commissioners, we find that, by subsection 22 of section 707 of the Code, they can establish public hospitals for their several counties in cases of necessity, and make rules, regulations, and by-laws for preventing the spread of contagious and infectious diseases, and for taking care of those afflicted thereby; the same not being inconsistent with the laws of the state. By no reasonable construction of that subsection of the Code can it be held that the boards of county commissioners can burn a residence house to prevent the spread of contagious and infectious diseases. A proper disinfection would be the extent of their powers in respect to property thus tainted or infected. It is not alleged in the complaint that the acts complained of were ordered by the county superintendent of health; nor does the cause of action, as stated in the complaint, proceed upon the idea that the property was destroyed by the defendants under a method allowed by law, and that the plaintiff is entitled to compensation for its loss. The action is one purely in tort.

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 for 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 against them. White v. Commissioners, 90 N.C. 439; Manuel v. Commissioners, 98 N.C. 9, 3 S.E. 829. There is, however, a distinction between the liability of a county for failure to discharge corporate duties, and that of a town or city for such a failure. Towns and cities are, as a general rule, liable in damages for the negligence of their officers and agents when specific duties are imposed by their charters and special statutes, when the damages are caused by their failure to discharge such duties...