Threadgill v. Board of Commissioners

6 S.E. 189, 99 N.C. 352

• Court: Supreme Court of North Carolina
• Decided: February 5, 1888
• Status: Published

Opinion

Smith, C. J.,

(after stating the case). The complaint imputes to the Board of County Commissioners, charged not as individuals in office but as a corporation representing the county, dereliction in public duty in permitting the privy to remain in a filthy and offensive condition to the hurt and annoyance of the plaintiffs and other near residents. It assumes the obligation to keep it in a cleanly manner to rest upon the board by virtue of vesting of the title to the premises in the board as a trustee for the public. The Code, § 707; sub secs. 5, 7, 8.

But the duty in reference to the public property is defined in sub-sec. 5, which authorizes it “to make such orders respecting the corporate property of the county as may be deemed expedient,” and this requires the employment of such agents and the raising and appropiating such moneys as may be sufficient to keep the public buildings in repair, and to maintain them in such condition as to prevent any noxious and offensive exhalations to proceed from any of them put to the private use of the people. A privy is not only a convenience but a necessity, and the only fault at tributable to any one is in suffering an accumulation of night-soil, until, for want of cleansing, the emanating effluvia becomes a nuisance to the public. It is nowhere charged that the board has failed to use the means at their disposal to prevent such consequences, and this is the measure and extent of official responsibility.

In State v. Fishblate, 83 N. C., 654, the Mayor and Aider-men of Wilmington were chai’ged with the neglect of official duty in permitting obstructions in some of the streets, and the streets themselves to become ruinous and in decay, and, on motion, the indictment was quashed for failing to point out the particular duty enjoined and neglected and in what manner imposed, following the rulings in the antecedent cases therein recited. The same principle is again asserted in language quite as strong and explicit by Merrimon, J., speaking for the Court in State v. Hall, 97 N. C., 474.

In the excellent work of Judge JJilloN on Municipal Corporations, § 963, the author says: “According to the prevailing rule, counties' are under no liabilities for torts except as imposed (expressly or by necessary implication) by statute; ” and in a note where numerous references are made to adjudged cases, he adds: “A county is not liable for a nuisance to a citizen in the erection of a jail in the immediate vicinity of his residence, nor for suffering it to become so filthy and disorderly as to be a nuisance to him and his family.” The doctrine is, that while these corporate agencies must provide the means and employ the men to perform such duties, they are not personally and by their own labor to perform such menial services, and the default to make them liable must be in neglecting to exercise their authority in the use of labor and money for that purpose, and so must it be charged to make a cause of action against them. The Court, therefore, properly arrested the proceedings when attention was called to the infirmities in the complaint and dismissed the action.

Affirmed.