MacK v. Charlotte City Water-Works

107 S.E. 244, 181 N.C. 383, 1921 N.C. LEXIS 83

• Court: Supreme Court of North Carolina
• Decided: May 18, 1921
• Status: Published

Opinion

Hoke, J.

The city of Charlotte is now under a commission form of government, and at and before the time of this occurrence it owned and controlled its water-works and supply, this same being under the special management of the board of water commissioners of the city of Charlotte. Both under the present and preceding forms of government, this last was an official departmental board, created as a part of the city government for the more convenient and efficient ordering of the waterworks and supply. And their action on matters in the line of their official duties and within the scope of their powers is the action of the city,, and suits and demands on the part of individuals growing out of their management as a board are in fact and truth suits against the city, and must be so considered and dealt with in determining the rights of parties involved in such a controversy. Consolidated Statutes, ch. 56, secs. 2807-8-9, 2833 et $eq., 2878, etc.; Private Laws 1907, ch. 342, sec. 174, etc.

This being true, our decisions hold, and the present statute is in full affirmance of the principle (C. S., 2807), that a municipality may not be held liable at the suit of individuals for injuries caused by its officials when in the exercise of governmental functions and-matters affecting only the public interests, unless such liability is expressly recognized and provided for by statute.

In a recent case on this subject this limitation on the right to suit for such an injury is stated as follows: “The principle upon which a municipality engaged in supplying water to tbe individual citizen, under contract for profit or pay, must be considered and dealt witb as a private owner, applies to tbe ordinary burdens and liabilities incident to tbeir private business relations, and not to its work for tbe public generally, sucb as procuring its water supply and extending it, providing for fire protection and sanitation purposes, and tbe like, for therein tbe municipality is to be regarded as a governmental agency and, as sucb, possessing and capable of exercising tbe powers and privileges conferred upon it by law.” Felmet v. Canton, 177 N. C., 52.

Tbe question was directly presented and same ruling made in Howland v. Asheville, 174 N. C., 749; Harrington v. Greenville, 159 N. C., 632; McIlhenney v. Wilmington, 127 N. C., 146; Moffitt v. Asheville, 103 N. C., 237, are in recognition of tbe same general principle.

And if there should be any doubt that this is now tbe approved position witb us tbe matter would seem to be put at rest by'0. S., 2807, which provides in part as follows: “Tbe city may maintain its own light and water-works system to furnish water, for fire and other purposes, and light to tbe city and its citizens, but shall in no case be liable for damages for a failure to furnish a sufficient supply of either water or light,” etc.

Sucb a statute has been held to be well within tbe legislative powers to tbe extent that it applies to “official acts, governmental in character, or for tbe benefit of tbe public generally.” 19 R. C. L., p. 1111, Title, Municipal Corporations, sec. 392, citing Schigley v. Waseka, 106 Minn., 94, and other cases, and is undoubtedly controlling on tbe facts of this record.

In Munick v. Durham, ante, 188, opinion by tbe Chief Justice, a recovery against tbe city was sustained, but that was a suit growing out of tbe settlement of claimant’s water bill, and involving only tbe business relations between tbe individual and tbe city as vendor of water for profit, and not as here in a matter concerning tbe water supply for general fire protection. Tbe two cases serve very well to illustrate tbe two classes of actions, and mark tbe distinction between them.

There was error in overruling tbe demurrer, and on tbe facts presented judgment should be entered for defendant.

Reversed.