Kinsey v. Magistrates of Jones, 53 N.C. 186, 8 Jones 186 (1860)

Dec. 1860 · Supreme Court of North Carolina

53 N.C. 186, 8 Jones 186

WILLIAM C. KINSEY v. THE MAGISTRATES OF JONES.

The justices of a county are not 1 esponsible to the owner of property for injuries to it, occasioned by defects in public bridges under their control.

This was an action of the case, submitted to Bailey, J., at Pali Term, 1860, of Jones Superior Court, upon the following case agreed.

The plaintiff’s negro, with a mule and cart, while crossing over a bridge in the county of Jones, were precipitated into the river Trent, by the breaking in of the bridge, and in consequence thereof, the mule and cart were lost. It was admits ted that the bridge was dangerous, and that the magistrates knew it, but it was also admitted that they had entered into a contract with a person fully competent to repair said bridge, as soon as they were aware of its dangerous condition, but that he had neglected to do so. It was agreed, that if the Court should be of opinion that the defendants are liable in this action, judgment should be rendered for the plaintiff, for the sum of one hundred and seventy dollars; if the contrary, that judgment of nonsuit should be entered. The Court being of opinion that the action could not be sustained, judgment of nonsuit was accordingly entered, Plaintiff appealed to this Court.

J. W. JBryan, for the plaintiff.

Washington, for the defendant.

Manly, J.

We concur with the Court below, in the opinion that this action cannot be sustained. The justices cannot be held responsible, either in criminal prosecutions or civil actions for deficiencies in the public highways and bridges.' — - They are charged with certain duties in respect to them, but when these are performed, their office ceases, and the overseers and contractors are responsible to the country and to citizens.

That they are not criminally responsible, except for the non-performance of the specific duties assigned them by law, is decided by the case of The State v. The justices of Lenoir, 4 Hawks, 194; and that they are not responsible at all, in civil actions to the citizens of the country, is also settled by authority, and the uniform practice of the State.

We content ourselves with referring to the work of Angel and Durfee on highways, sec. 286, and the cases there cited, which was called to our attention by the defendant’s counsel, in the argument.

In some of the States it seems provision has been made, subjecting parishes, townships, counties and the like, quasi corporal ions to a limited responsibility by civil action, but it is well settled that there is no such-redress at common law.- — ■ The reasons given are, that it is a public matter, and ought to be reformed by presentment; and that corporations of that class have no treasury at their disposal, out of which they could pay damages and no power to provide any.

The justices, as a municipal body in our system, act only through the medium of a majority of its members, and their actions, when done, bind the body as such, and not the individuals of whom it is composed. So their refusal or neglect to act would be the refusal or neglect of the body, and render it alone responsible. How is satisfaction of a judgment, against such a body, to be obtained.

Heretofore, in North Carolina, redress against the justices for misconduct or omission of duty, has been sought through the writ of mandamus. Besort to this process is based upon the assumption that there is no other legal remedy, for it is only proper in that case, as is shown in the State v. Jones, 1 Ired., 129 ; and the State v. The justices of Moore, 2 Ired., 430. The many cases of mandamus, found in our reports, to compel justices to perform their duties are, therefore, so many judgments of our courts, by a necessary implication that the remedy, by private action, was not open to the citizen.

The novelty of this action is evidence against it. Although, as alleged, it belongs to the common law rights of action, it is without precedent so far as we know.

Per Curiam,

Judgment affirmed.