Brown v. . R. R.
123 S.E. 633
N.C.
1924
Check Treatment
HoKE, O. J.

The defendants, the former mayor and board of alder-' men, having been exonerated by the verdict and judgment below, and the result not being questioned by appeal or any exception noted, it is not necessary or desirable to dwell at any length on the rule and extent of liability of these defendants, nor to the statutes of limitations applicable as to them, wbicb may vary in different cases according to the form of action and the nature of the default charged against them. Considering the record, then, as to the liability of the railroad company, appellant, it appears tbat in the latter part of 1920, under a formal resolution of the board of aldermen, public funds of the town of Sylva, a municipal corporation, were wrongfully taken from the treasury of the corporation and applied to the purchase of certain rights of way for the railroad company, a private enterprise, without any vote of the people and without any statute authorizing said expenditure, and tbat the defendant, the railroad company, through its agents and representatives, suggested and aided in such course, obtained the rights of way with full notice and knowledge of the wrongful appropriation of these funds, and is now in the use and enjoyment of these rights of way so purchased and procured. Being entirely without warrant of law, and knowingly and wilfully done, authority is to the effect tbat the funds may be recovered by action against the individuals composing the old board, who are responsible and participated in the misappropriation, against others who aided and abetted them in the wrong, and more especially against those who, having been aiders and abettors, are now enjoying the benefits of the same. Ketchie v. Hedrick, 186 N. C., 392; Aldrich v. Bank, 176 U. S., 618; Hope v. City of Alton, 214 Ill., 102; People v. Fields, 58 N. Y., 491; Hill Dredging Company v. Venton City, 77 N. J. Eq., 467; Jones v. Comrs. of Lucas County, 57 Ohio State, 189; Tuxera v. Jonesboro, 83 Ark., 275; 19 R. C. L., p. 928, note under sec. 229; 19 R. C. L., p. 1142, secs. 418 and 1167, sec. 441; 28 Oye., p. 469. And the decisions bold further tbat when the officials of the corporation refuse or, being thereto required, neglect to sue, action for the funds may be maintained by resident taxpayers for tbe *58 benefit of the municipality. Waddill v. Masten, 172 N. C., 582; Tukey v. Omaha, 54 Neb., 370; 19 R. C. L., 1169, supra. In the Waddill case it is suggested as the better course that the officials of the corporation entitled to the care and custody of the funds in question should be made a party to the suit by taxpayers, but this matter is sufficiently and perhaps properly guarded in the present instance by incorporating in the judgment that the money recovered be paid into the clerk’s office for the use of the proper authorities of the town. These principles are not seriously contested by counsel; in fact, liability for the default as a basic proposition is admitted in appellant’s brief. As 'we understand the argument,-however, it is insisted for appellant that the board of aldermen having been exonerated by verdict and judgment, the railroad is thereby relieved on account of an alleged privity between them. 2d. That appellant is protected by the same statutes of limitations that has been adjudged á protection for its eodefendant (C. S., see. 443, subsec. 1), and by which an action is barred in one year “against a public officer for a trespass under color of his office,” but, in our opinion, neither proposition can be maintained. As to the first, the default imputed here is for a pronounced breach of public duty, wil-fully and knowingly committed, and constitutes a tort. True," in certain instances, the tort may be waived and the injured party be allowed to sue in contract, but the breach of duty is none the- less a tort, for which any and all the participants may be held severally liable for the whole amount, and under these circumstances there is no such privity recognized as will render the exoneration of one a protection to the other. Stevens et al. v. Smathers, 124 N. C., 571; Raulf v. Light Co., p. 176 N. C., 691; Hipp v. Farrell, 169 N. C., 551, 554; Hough v. R. R., 144 N. C., 692; Banking and Trust Company v. Boone, 102 Ga., 202; Cooley on Torts (3 ed.), 223-254; Hale on Torts, 124; 6 Cyc., 683, 684. And as to the effect of the statute cited, we are clearly of opinion that the same has no application to a case of this character. True, in its more general sense, a trespass is sometimes said to include any wrongful invasion of the rights of another, but in its more natural and usual meaning it is properly restricted to unlawful acts done to the person or property of another by violence or force, direct or imputed. 28 Am. & Eng. Cyc. (2 ed.), 551. It is to acts of trespass in this sense that the one-year statute of limitations applies — that is, a trespass committed by a public officer under color of his office and constituting a wrongful invasion of the rights of third persons by force shown or imputed, and the statute does not and was never intended to apply to a breach of official duty in reference to the principal and employer — in this case the municipality. Such an interpretation would enable public -officials to misapply public money ad *59 libitum, and by beeping same secret for tbe one year, wbicb tbey could usually do, entirely escape a reckoning, except by indictment for crime. It is not necessary to determine wbat is tbe specific statute applicable, wbicb, as heretofore stated, may vary according to tbe form of action or tbe nature of tbe default, and wbicb might be either tbe three-years statute, C. S., sec. 441, subsecs. 1 and 2, or if not included in either of those, tbe ten-years statute, section 445; but we are well assured that tbe statute relied upon, section 443, has no application; and tbe suit having been instituted in August, 1922, within three years, tbe defendants are not protected.

We find no reversible error in the record, and tbe judgment below is

Affirmed.