#### F. E. WINSLOW v. THE COMM’RS of PERQUIMANS COUNTY.

A municipal corporation may be sued in any form appropriate to the cause of action; its liability does not, as respects the form of action differ from that of a private corporation, or an individual:

Therefore, an action in the form usual upon money demands, was sustained against a county, for a debt due on a contract in regard tc bridge building.

Semble, that the plaintiff, upon a proper prayer for judgment, mightinsucl a case, have had a mandamus, to compel the defendants to levy a ta2 and pay his debt.

(Distinction between Corporations, and Q'Masi-Oorporations stated.)

(Methods of satisfying judgments against municipal corporations, con sidered and discussed.)

{Meares v. Gomm’rs of Wilmington, 9 Ire. 73; Brown v. Gomm’rs of Wash inglon, 63 N. C. 614; Tucker v. Justices of Iredell, 1 Jon. 451; McKjuyv. Justices of Harnett, 6 Jon. 488; Biggs, ex parte, ante, 202, cited anc approved.)

By Dick, J. dissenting. A mandamus is still the only remedy against i county, for failing, or refusing, to pay its debts.

Action for money, tried by Pool, J., at Eall Term 1861 of Perquimans Court.

The plaintiff, under a contract with the county, hacL built *219 a float bridge, which had been accepted; his claim had also been audited, an order upon the Treasurer given therefor, ■and partial payments thereon made. About $2400 remained unpaid, and for this he brought the form of action usual in money demands, the judgment demanded being “for the sum ■of $2,433 58, with interest from” &c.

The defendants demurred to the complaint, upon the .ground that mandamus is the only form of action proper .against counties, &c.

His Honor . sustained the demurrer, and the plaintiff appealed.

Bragg, for the appellant.

Phillips & Merrimon, contra.

RodmaN, J.

The defendants are the Board of Commissioners for Perquimans County. The case states that, undera contract with the former County Court, the plaintiff built a certain bridge for which the County was indebted to him: that the defendant admitted the debt, and through their County Treasurer paid a part of it. The action is brought to recover the residue. The defendants demurred, and the only question is, whether a Board of Commissioners for County can be sued otherwise "than in an action of mandamus.

In my opinion', in a case where a good cause of action exists, a municipal corporation may be sued in any form appropriate to the cause of action, and its liability does not differ as respects the form of the action, from that of a private corporation, or of an individual. What will be the ■effect of the judgment, and how it is to be enforced, are ■questions not .before us for decision, and having no bearing on the form of the action.

My reasons for this opinion maybe classed under two heads:

1. Those going to show that the ordinary action to recover .a debt is maintainable against a municpal corporation.

2. Those arising out of the nature of a mandamus, and going to show that it cannot be the only remedy.

*220By the Constitution, Counties are regarded as munici corporations. Art. VII, especially Secs. 7 & 43. The . of 1868, ch. 20, p. 22, concerning the government of Count says: a Every County is a body politic and corporate.” 1 1, Sec. 1: “It has power: To sue and he sued in name of the Board of Commissioners.” u To make si contracts as may he necessary to the exercise of its powei Sec. 3: “To liquidate and audit accounts against the Coun and direct the raising of the sums necessary to defray ther Oh. 2, Sec. 6. Under our former system, the Counties w not considered corporations, hut at most,'only quasi corp ations. Hence, the cases in which Justices of Counties hi been sued by mandamus (although none of them decide tl to be the exclusive remedy) are not precedents in point m to prove that remedy exclusive; neither, for the same reasi are any, where the liabilities of merely quasi corporations are c cussed, arguments in favor of that view. On the contra: Í think those cases support the view I take, viz: that a c< poration, municipal, quasi, or other, maybe sued in any fo: appropriate to the cause of action, and to the nature of t relief demanded. The leading case on the liability of qm corporations, such as hundreds, parishes, &c., in Englai and such as our Justices of the County Courts, Wardens the Poor, &o., formerly were, is, Russell v. The men of Devon, 2 T. R., 667. That was an action on the case, against t men dwelling in Devon, to recover damages for an accide occasioned by the road being out of repair. The plaint failed, not because of the form of his action, but because ‘ had no right against the defendants.

The doctrine of quasi corporations, as I understand it, is th When a statute imposes upon an uncertain body of me such as the inhabitants of a Hundred or County, a certa duty, without expressly incorporating them, if the duty such that a civil liability will arise in favor of any pers( injured by a breach of it, the courts, in order that there mi be no right without a remedy, hold the body to be a corpor *221 quoad that liability. It is not a corporation, except by ication only, and for a single purpose, therefore it is called a i corporation.- TKe expression that no action will lie ist snob a corporation, unless given, by statute, means , unless the liability be imposed by a statute, for, there g nope of common right, it can only exist by statute, if the statute gives the right, the common law provides justomary remedy, as it did under the Statute of Win 13 Ed. 1, making Hundreds liable for robberies, &c., by ction on the case.

it, apart from any inference to be derived from cases of sort, what reason can be assigned why a corporation Id not be sued in any form appropriate to -the cause of n ? The diverse forms of actions arose out of the diver-'ll the nature of the rights claimed, and not out of any ’euee in the quality or kind of the defendants: if that ■ence is of any consequence at all, it only becomes so the right has been ascertained by judgment, and when [uestion is as to euforcing it. Of course it is not dispuy anj^ one, that a corporation may be sued. B.ut in the of a corporation authorized to sue and be sued gener-why limit the quality to a single form of action ¶ I do hink there is any authority for doing so, and this court i,t least once, sustained another action than mandamus Lst express municipal corporations, such as counties now

Meares v. Com. of Wilmington, 9 Ire. 73; Brown v. of Washington, 63 N. C. 514. The only reason I have l suggested for the exemption contended for, is a sup-l. difficulty in enforcing a judgment in debt against a cipal corporation. It is said that the county property, the house &c., cannot be levied on, and there is nothing o take. That may be admitted, and the supposed diffi-still not exist. In recoveries against the hundred un-he Stat. of Hue and Cry. 13 Ed. 1, the execution ied on the property of any inhabitant of the hundred, Dig. Hundred ; and in Russell v. Men of Devon, 2 T *222R. 667, it was conceded that snob would be the plaintiff’s remedy if he had a right to recover; See also Tapping on Mand, 317. However this may be, and it may be a matter requiring legislation, a judgment in mandamus, when it is for the payment of money, which is said in Tucker v. Justices of Iredell, 1 Jon. 451, to be its proper form, has on advantage in that respect over a judgment in debt. In McKay v. Justices of Harnett, 6 Jon. 488, it was said that the judgment could be collected out of the individual Justices, who might reimburse themselves by levying a tax. See also The Queen v. Vittoria Park Co. 41 E. C. L. 547. Of course, this method is equally practicable upon a judgment in debt. But it deserves consideration whether under sections 264 &c., of the C. C. P. respecting proceedings supplementary to execution, the means of enforcing payment there provided, may not be found practically so sufficient and convenient, as to make it unreasonable to resort now to the property of individuals.

There is another argument which seems to me very strong against the view that mcvndamms is the only remedy against a county. Before the Stat. 9 Anne, oh. 20 (Rev. Code ch. 95, s. 5.) if a respondent to a mandamos made a return good in law, although false in fact, the court was obliged to give judgment against the petitioner, whose only remedy then was an action on the case for a false return; Tucker v. Justices of Iredell. So that it would follow, if a county could not be sued in an action in the case, it could before that statute escape liability altogether by the expedient of a false return; a proposition that cannot be admitted.

But if it were true, that by reason of a county having no corporate property liable to execution, a judgment in debt would be barren, it will not follow that mandamus is the proper remedy, “for if the writ were to be granted because there happened to be no chattels seizable, it would be difficult on principle to refuse it in any case where the sheriff should return nulla bona." Tapping on Mand. 24.

*223If I have maintained my first position, the second follows, f course, for it is admitted, that mandamus will only he then there is no other adequate legal remedy; Tapping 18, Biggs, expanrte, at this term. But there is another reason, rising out of the nature of the action of mandamus, which ; seems to me is conclusive against the idea of its being an xclusive remedy against counties. It lies only to enfore a igal as distinguished from an equitable right; Tapping 18, nd obviously counties may be subject to trusts or other urely equitable liabilities, which upon the doctrine con-mded for, would be without remedy.

I do not say that the plaintiff would not have been enti-ed to a mandamus in this case, if his prayer were ,that the efendant might be compelled to levy a sufficient tax, and rereupon to pay his debt, for that is a relief which he can iitain in no other way.

I think there was error in the ruling of the Judge.

Let this opinion be certified.

Peaksok, C. J. I concur in this opinion.

Settle, J. I concur in the opinion of Justice Eodman.

Dick, J.

{dissenting.) Under our former system of gov-mment, if the Justices of a county made a contract with a irson, in pursuance of powers vested in them by law, they raid be compelled by a writ of mandamus, to perform such mtract, upon their legal liability being clearly established. McKoy v. Jus. of Harnett 6 Jon. 488. This writ was wanted to a person having a just claim under such contract, icause he had no remedy by an ordinary action, to compel Lese officers to perform a public duty.'

Under our present system of government, many of the rblic duties which were performed by the Justices of a ranty, are now entrusted to five Commissioners. A person *224having a specific legal claim against a county, may still enforce his right by a writ of mandamus against the commissioners, unless the Code of Civil Procedure affords him an adequate remedy by civil action : C. C. P. sec. 392.

It is therefore necessary for me to consider in this case, whether the plaintiff can obtain adequate relief by a civil action against the county as a body corporate.

The act of 1868, ch. 20, provides that ‘‘every county is a body politic and corporate and has the powers specified by statute, or necessarily implied in such a body and no others.” It has power to sue and be sued in the name of the commissioners.

A county is only a quasi corporation, established exclusively for public and political purposes, and constitutes, a part of the government of the State. It is entrusted with many high and important functions, which are to be exercised by its officers for the public benefit. The Legislature may, at will, enlarge or modify these functions, but public policy requires that they shall not be impaired by the private action of a citizen, except by the authority of a statute expressly defining the force and extent of such action. The common law does not give any such right of action, and it cannot arise by implication from a general statute providing merely that such a corporation may “sue and be sued.”

(1.) The law does not contemplate the satisfaction of a claim against a county, in any other manner than by an assessment upon the taxable property of its citizens; Act of 1868, ch. 20, ch. 2, sec. 8, par. 1, s. 3, 9, to 13. If the present action can be maintained, then the plaintiff, upon obtaining a judgment, is entitled to an execution, under which he may sell the court house and jail, and thus obstruct entirely, or produce great inconvenience in, the public administration of justice, and render insecure the pub lie records and papers in which every citizen is interested. The bare statement of such a proposition seems to me to be sufficient to show its fallacy. It cannot be possible that the law by mere *225implication gives an action when a judgment cannot be enforced by final process without great detriment to the-public interests.

I therefore entertain the opinion that a private action cannot be brought against a county for neglect or omission to perform a public duty, without some express statute directing the manner in which a judgment in such action can be satisfied; Eastman v. Meredith 36 New Hamp. 296, where the authorities are fully cited and ably commented upon.

• “The reasons which exempt these public bodies from liability to private actions based upon neglect to perform public duty, do not apply to villages, boroughs and cities which accept special charters from the State. The grant of this-corporate franchise in these cases, is usually made only at the= request of the citizens to be incorporated, and it is justly assumed that it confers a valuable privilege. This privilege is a consideration for the duties which the charter imposes. In this respect these corporations are regarded as occupying the same position as private corporations,” &c. Cooley on Con. Lim. 247; Meares v. Commissioners of Wilmington, 9 Ire. 73. Counties'and townships do not usually possess corporate powers under special charters, but they exist under general laws, and have to perform certain public duties as a part of the machinery of the State. “Whether they will assume these public duties and exercise these powers they are not allowed the privilege of choice” Cooley, 240. The plaintiff’s counsel insists that this action may be prosecuted to judgment, and then the plaintiff can apply for a writ of mandamus to enforce the payment of his claim. The law certainly cannot contemplate such circuity of action when the same result can be obtained by a direct remedy, enforceable by attachment.

. The proceedings in this case cannot be regarded as an application for a mandamus, as that high prerogative writ can be granted only by the Judge of a Court of superior juxis-dietion.

*226In my opinion Ms Honor was right in sustaining the demurrer.'

Pee Cueiam. Error.