Steele v. Comm'rs of Rutherford.

• Decision Date: 31 January 1874
• Citation: 70 N.C. 137
• Court: North Carolina Supreme Court
• Parties: W. A. STEELE v. COMMISSIONERS OF RUTHERFORD.

70 N.C. 137

W. A. STEELE

v.COMMISSIONERS OF RUTHERFORD.

Supreme Court of North Carolina.

January Term, 1874.

The Acts of 1870-'71, chap. 42, secs. 1 and 2, (Bat. Rev. chap. 18, secs. 1 and 2,) and of 1871-'72, chap. 45, do not change the venue of any action; and therefore, actions against a Board of County Commissioners, must be brought in the county of such Commissioners.

( Jones v. Commissioners of Bladen, cited and approved.)

CIVIL ACTION, for the recovery of certain interest, tried on demurrer, by Moore, J., at the July (Special) Term, 1873, of the Superior Court of MECKLENBURG county.

Plaintiff sued defendants, who compose the Board of Commissioners of Rutherford county, to the Superior Court of Mecklenburg, the county in which he, the plaintiff, resided.

Defendants demurred, alleging as a cause, that the action should have been brought in the county of which defendants were officers, to wit; Rutherford.

His Honor sustained the demurrer, dismissing the action, and gave judgment against the plaintiff for costs; from which judgment he appealed.

J- H. Wilson, for appellant .

Carson, and J. C. L. Harris, contra , submitted:

I. Court did not have jurisdiction: Sec. 67, C. C. P.: “Actions for the following causes must be tried in the county where the cause, or some part thereof, arose, subject to the like power of the Court to change the place of trial, in the cases provided in this Code.”

1. “For recovery of penalty, &c.”

2. “Against a public officer or person especially appointed to execute his duties, for an act done by him by virtue of his office; or against a person who by his command or in his aid, shall do anything touching the duties of such officers;” Jones v. Commissioners of Cleavelan d, 67 N. C. Rep. p. 101, Alex ander v. Commissioners of McDowell, 67 N. C. Rep. p. 330; Jones v. Commissioners of Bladen, 69 N. C. Rep. p. 412. II. Demand must be made on the proper officer of the county and refused, and defendants must have notice of such demand and refusal. Love v. Commissioners of Chatham, 64 N. C. Rep. p. 606; Alexander v. Commissioners of McDowell, 67 N. C. Rep. p. 330.

READE, J.

The question is as to the proper venue of the action. In Jones v. Commissioners of Bladen, at last Term, 69 N. C. Rep. 412, it was held, “That suits against the County Commissioners ought to be brought in the county in which they are commissioners.” And that case was supported by two other cases therein cited. The case was well considered, as will appear by the fact that the Court were divided. And the case was also well argured, as will appear by the brief of the plaintiff's counsel, who argued against the conclusion to which the Court arrived. As that is the only point in this case, it would probably have been considered as settled, but for the fact that the decision was put upon C. C. P. sec. 67; and it is supposed that there are two subsequent statutes which have changed the 67th sec. C. C. P., and which were not called to the attention of the Court on the argument, nor cited in either of the opinions. Out of respect for the learned counsel who argued this case, we consider the point anew, and with reference to the subsequent statutes.

C. C. P. Sec. 67, upon which the decision in Jones v. Commissioners of Bladen, supra, was founded, provides that “actions for the following causes must be tried in the county where the cause or some part thereof arose: * * * * * against a public officer; * * * for an act done by him in virtue of his office.” &c. From this we inferred that public officers must be sued in their own counties.

The dissenting opinion of our learned brother RODMAN was based upon the first clause above, and upon his conclusion that the proximate cause of action was the failure of the commissioners of Bladen to seek their creditor, who lived in Cumberland county to which the suit was brought, and pay him his debt. We did not think that the failure to pay the debt was the cause of action spoken of in the statute; but that the debt itself was the cause of action. And that the expression, “where the cause of action arose” meant where the debt was contracted or originated. And that view is strengthened by the second clause above, “against a public officer * * * for an act done by him by virtue of his office.” Now as an officer's official acts are confined to his county, and as the cause of action is his official act, it follows that the cause of action spoken of “ arose” in the county in which the Commissioners acted, and not out of their county where they did nothing “by virtue of his office.” It seemed to us to be the policy to...