James Ex Rel. James v. City of Charlotte
112 S.E. 423
N.C.
1922
Check Treatment
Hoke, J.

Tbe statute under which tbe regulations were chiefly made, and tbe employee operating tbe truck at tbe time, 0. S., 2799, contains provision as follows: “Tbe governing body may by ordinance provide for tbe removal, by wagons or carts, of all garbage, slops, and trash from tbe city; and when tbe same is not removed by tbe private individual in obedience to such ordinance, may require tbe wagons or carts to visit tbe bouses used as residences, stores, and other places of habitation- in tbe city, and also may require all owners or occupants of such bouses who fail to remove such garbage or trash from their premises to have tbe garbage, slops, and trash ready and in convenient places and receptacles, and may charge for such removal tbe actual expense thereof.”

In Harrington v. Greenville, 159 N. C., 632-634, it is stated as tbe recognized doctrine in this jurisdiction tbat “unless a right of action is given by statute, municipal corporations may not be held civilly liable to individuals for failure to perform or negligence in performing duties which are governmental in their nature, ’and including generally all duties existent or imposed upon them by law, solely for tbe public benefit.” Citing McIlhenney v. Wilmington, 127 N. C., 146; Moffitt v. Asheville, 103 N. C., 237; Hill v. Charlotte, 72 N. C., 55.

*632 And Mack v. Charlotte, 181 N. C., 383; Howland v. Asheville, 174 N. C., 749; Snider v. High Point, 168 N. C., 608; Peterson v. Wilmington, 130 N. C.; 76, and other cases with us are in approval of the position. In Snider v. High Point, supra, the employee, whose negligence caused the injury, was engaged in the removal and destruction of garbage and other refuse matter under the sanitary regulations of the city, and the decision of the Court denying liability on the ground that the employee at the 'time was engaged in performance of duties governmental in their nature would seem to be controlling against the plaintiff on the facts of the present record.

In a recent decision of the Supreme Court of the United States, Adelbert Harris v. District of Columbia, 41 Supreme Court Reporter, 610, the same principle is fully recognized. It is contended for plaintiff that the position referred to does not apply to the facts of the present record because it appears that the employee at the time was in violation of the speed regulations applicable, and constituting the negligence complained of a misdemeanor, C. S., 2618, but we are of opinion that the exception cannot be sustained.

It is recognized that “a statute which merely makes that a crime, misdemeanor, or offense, punishable by a penalty or forfeiture, which before its passage was already a legal wrong to individuals injured thereby, redressible by civil action, or suit, does not take away the preexisting cause of action, unless it is so declared expressly or by necessary implication.” 1 Cyc., 681. But where there is no legal wrong existent and the statute purports to create a new offense and provides a remedy, there, as a rule, the remedy provided must be pursued, and none other. S. v. R. R., 145 N. C., 495-539; 7th Lawson’s Rights and Remedies, sec. 3777; 2d Waites, Actions and Defenses, p. 109.

Applying the principle as to private persons, individual or corporate, the negligence- condemned and made a misdemeanor in C. S., 2618, was actionable at common law, and therefore the section is regarded as cumulative to the right of action existent at common law, but as to municipal corporations, when in the exercise of governmental functions, no right of action existed at common law, and the liability, if any, arises only by statute, and as to them, therefore, the statutory remedy by indictment is alone given and must be pursued.

Again it is insisted that the city is not protected from liability in this instance because it charges a fee for removal of garbage, but the position is without merit. True, we have held in several cases that where a municipal corporation enters into the business of selling light and power to its citizens for profit, they are not regarded as being in the exercise of governmental functions, and under proper circumstances may be held *633 to civil liability. Munick v. Durham, 181 N. C., 188; Harrington v. Wadesboro, 153 N. C., 437; Fisher v. New Bern, 140 N. C., 506.

But tbe principle invoked bas no application where, as in tbis instance, tbe city merely makes a charge covering tbe actual expense of removing garbage and refuse in discharge of a duty primarily incumbent on tbe individual citizen and occupant of property. Tbe decisions to which we were referred in tbe learned brief of appellee’s counsel are in full support of their position on tbis question. Moulton v. Fargo, 167 N. W., 717.

We find no error in tbe record, and tbe judgment of nonsuit must be

Affirmed.