Fore v. . FeimsterFore v. . Feimster
аfter' stating the case: In direct reference to the question presented, the statute makes provision as follows: “Every county, city, town, or other municipal corporation which shall let a contract for the building, repairing, or altering any building shall require the cоntractor for such work to execute a bond with one or more solvent sureties, payable to the said county, city, town, or other municipal corporation, and conditioned for the payment of labor done and the materials and supplies furnished for the said work, ... if the official of said county, town, or other municipal corporation whose duty it shall be to take said bond shall fail to require said bond herein provided to be given, he shall be guilty of a misdemeanor. Any laborer doing work on said building, and materialman furnishing material thеrefor and used therein, shall have the right to sue on said bond the principal and sureties thereof, . . . for the recovery of the amount due them respectively.”
The conditions of the bond taken being only to save the obligee, that is, the county of Iredell, harmless by reason of default in complying with the stipulations of the contract, as now advised the bond does not seem to extend or apply to the claims of materialmen and laborers for sums due them from the contractor,
Mfg. Co. v. Andrews,
In tbe Arkansas case it is said: “Tbe failure of public officers to comply witb tbe statute directing tbe taking of a bond from a contractor for public work conditioned on paying all indebtedness for labor and material, upon wbicb bond any person, etc., may sue, does not render tbem individuаlly liable.”
In tbe Missouri case, supra, Bland, P. J., delivering tbe opinion, said: “It is to those corporations, and not to tbe living persons tbrougb wbom tbey manifest tbeir will and power, tbаt tbe Legislature bas spoken, and wben tbe contract for tbe erection of tbe school building was let by tbe school district of Kirkwoоd, it became its duty to require tbe contractor to give tbe bond; tbe duty was a corporate one, and tbe failure to perfоrm this duty was tbe negligence of tbe corporation and not of tbe individuals who compose tbe board of directors of tbe district. In tbe letting of tbe contract and in tbeir failure to take tbe bond of tbe contractors, tbe directors did not act as individuals engaged in tbe enterprise of erecting a building, but as a board of directors tbrougb wbicb tbe school district manifested its will.”
Without at present giving our full apрroval to its application in these last three cases, tbe position finds support and becomes controlling in this jurisdiction by a proper consideration of tbe general statute law under wbicb our counties are established and exercise tbeir duties, and tbe features of this legislation by wbicb a proper performance of these duties are enforced. In chapter 23 of Revisal, sec. 1319, it is declared tbat “every county is a body politic and corporate and shall have tbe powers prescribed by statute and those necessarily'implied by law, and no others, wbicb powers can only be exercised by tbe board of commissioners, оr in pursuance of a resolution adopted by tbem.” Then follows an elaborate statement of powers conferred, and in this аnd other-chapters and sections of tbe Revisal appear tbe penalties imposed for failure to perform thosе enumerated and general duties. In some cases tbe members of tbe board are made indictable; in others penalties are imposed. In certain specified instances, and particularly in cases of taking official bonds of sheriffs and tax collectors, tbe commissioners are expressly made individually liable as sureties where tbey knowingly take-such a bond tbat is inadequate or inefficiеnt, Revisal, secs. 313 and 2914; and under penalty of forfeiting bis office, tbeir clerk is required to keep a record of tbe vote on offiсial bonds so tbat evidence may be available as to bow each member of tbe board bas voted on these questions. These boards of commissioners, charged witb manifold and important duties in tbe governance and well ordering of tbeir counties, many of tbem legislative or quasi-judicial in tbeir nature, serving often *555 times at great personal sacrifice, should not be held individually responsible unless clеarly made so by express enactment or some imperative principle of law, and while the duty in this case is no doubt ministerial, when proper weight is given to the language of the statute itself, imposing the duty on “counties, cities, towns, or other municipal corporаtions,” thus in terms creating a corporate duty, and to the fact that in the body of the law applicable, whenever individual liability has bеen heretofore desired, express provision has been made for it, we are of opinion that it is the correct interpretation of this legislation that, in its coercive features, the remedy is confined to that given by the statute itself, to wit, by indictment, and that no civil liability on the individual members of the board is intended or permissible.
The entire body of law applicable to this subject, being
in pari materia,
is to be construed as one and the same statute, and the fact 'that the Lеgislature, having created in terms a corporate duty, has imposed the personal liability in the one case and failed to do so in the other is equivalent to a legislative declaration that, in the latter instance, the liability does not exist.
People v. Hutchison,
There is no error, and the judgment of nonsuit must be
Affirmed.