142 N.W. 1131 | S.D. | 1913
We are of the opinion that there is not now and never was any common-law liability against officers of this class, individually, for neglect to -perform official duties. At common law the king could not be sued without his consent. Neither could any officer who represented the king. The same principle has been applied to the sovereign power of the state in this country. Members of a board of education fall within this class of officers who represent the king or who represent the sovereign power of -the state in a public official capacity. Liability for negligence and suit therefor against the individual officer can only exist by virtue of an express statute creating the individual duty of such officer, and also authorizing the maintenance ■ of a suit for failure to- perform such duty. No suc-h individual duty, as charged in the -complaint, has ever been imposed upon such officers as members of a board of education as individuals, in this state. From a close reading of chaptei 245, Laws 1909, it will be observed that the duty to take a contractor’s bond, as alleged in the complaint, is imposed on the corporation only, and not on the officers thereof as individuals, and
In section 6379, Thompson on Negligence, that learned author, in speaking of the personal nonliability of officers wielding distributed portions of the sovereign power, 'after discoursing upon the reasons for the rule that such municipal corporations are not liable for negligent acts in the absence of sovereign consent thereto, says: “Now, since the sovereign is not, without his consent, answerable before the judicial courts at the suit of any one for acts done in his sovereign or political capacity, it naturally follows that any officer who exercises, in any degree however small, or about concerns however petty, any distributive portion of the sovereign power cannot be held thus to answer.” •
School districts are state agencies exercising and wielding a distributive portion of the sovereign power of the state, and the officers of school districts are the living agencies through whom
In the case of Pressed Brick Co, v. School District of Kirk-wood, supra, construing a very similar statute, and under very similar circumstances, a case where the suit was against the school district corporation, and also against the board of directors, as individuals, and wherein it was sought to hold the directors liable,
The order and judgment appealed from in so far as they relate to the individual liability of the members of the board of education, defendants, are affirmed. The former opinion, to which this is supplemental, stands unchanged, with the exception as to costs on appeal. There should be no appeal costs taxed against either party, thereby leaving each party to pay their own costs and disbursements on appeal, and the judgment may be so modified.