Mary D. Horner, Adm'x, &c. vs. Hugh M. Coffey, 25 Miss. 434

Mr. Justice Fisher delivered the opinion of the court. This case is before us upon an appeal from a decree of the vice-chancery court at Natchez. The only point presented by the record for adjudication is, whether the individual property of the appellee, one of the selectmen and an inhabitant of the town of Grand Gulf, is liable to levy for the purpose of satisfying a judgment against the president and selectmen of said town in their corporate capacity. The seventh

section of the act of the legislature, incorporating the town of Grand Gulf, says: “That the said president and selectmen are constituted a body politic and corporate in fact; and in the name of the town of Grand Gulf, and by that name, they and their successors in office shall have perpetual succession, shall have a common seal, may purchase, hold, and convey property; and by the name and style aforesaid, shall be persons capable in law of suing and being sued in all manner of suits or actions, either at law or in equity,” — “ and may do all other acts incident to bodies corporate.” The tenth

section of the act, gives the president and select-jmen power to raise a revenue for town purposes, by taxing * such property as is liable to taxation under the existing laws of this state, “ Provided such tax shall not exceed twenty-five cents on every hundred dollars’ worth of such property in any one year.” Acts of 1833, 96, 97; These being the only provisions of the charter bearing upon the question under consideration, it will at once appear, that it contains no express provision in regard to the right asserted by the appellant, to resort to the individual property of the inhabitants of the town, for the purpose of discharging her judgment against the corporation.

Plence we must look alone to the common law for the rules to guide us in our decision.

"With respect to private corporations, such as banks or insurance companies, it is conceded, that no individual responsibility attaches to the members for the'corporate debts. “ A different rule prevails,” say some of the authorities, “ with regard to the inhabitants of any district; as counties or towns incorporated by statute, which come under the head of quasi corporations; for against them no private action will lie unless given by statute; and if a power to sue them is given by statute, each inhabitant is liable to satisfy the judgment.” Angell & Ames on Corp. 498, 499.

The same rule is more broadly stated by the supreme court of Connecticut, in the case of Beardsley v. Smith, 16 Conn. R. 368. The court on that occasion used the following language: “ We know, that the relation in which the members of municipal corporations in this State have been supposed to stand in respect to the corporation itself, as well as to its creditors, has elsewhere been considered in some respects peculiar. We have treated them, for some purposes, as parties to corporate proceedings, and their individuality has not been considered as merged in their corporate connection.

Though corporators, they have been holden to be parties to suits by or against the corporation, and individually liable for its debts.” “Such corporations are of a public and political character; they exercise a portion of the- governing power of the State. Statutes impose upon them important public duties. In the performance of these, they must contract debts and liabilities, which can only be discharged by a resort to individuals, either by taxation or execution.

Taxation in‘most cases can only be the result of the voluntary action of the corporation, dependent upon the contingent will of a majority of the corporators, and upon their tardy and uncertain action. It affords no security to creditors, because they have no power over it.” The same doctrine, in language equally strong, has been, in repeated decisions, announced by the supreme court of Massachusetts, and it is, perhaps, now the settled law of all the New England States.

In view of the numerous authorities, emanating from judicial tribunals as enlightened as those of the New England States, thus settling the law, we have been induced to give the question involved in the case before us a much more thorough examination than it otherwise would have received at our hands. This examination has only served to strengthen the opposition which we from the first conceived against the rule, as well as the principles upon which it has been settled by the authorities cited. We submit with all proper deference and respect, that neither position assumed by the court in the case of Beardsley v.

Smith can be sustained by any principle of the common law, in reference to the inhabitants of the town of Grand Gulf. These positions are, first, that the inhabitants of the town are parties to all suits by or against the corporation ; and, secondly, the charter authorizing a suit against the corporation, the inhabitants are personally liable to discharge the judgment when obtained. In regard to the first position, the suit was in this instance against the corporation. The record shows no other defendant. Hence, if the inhabitants were parties to the suit, they became such by operation of law.

Before the law will make, or even presume a man to be a defendant to a suit against another, he must be shown to have been a party to the cause of action upon which it is founded. Were the inhabitants of the town of Grand Gulf parties to the cause of action in this instance ? and if so, was it their own act, or that of the corporation, that made them such ? If of the corporation, had it power to perform the act? The tenth

section of the charter already noticed furnishes a conclusive answer to these several inquiries. It prescribes the manner in which, and the extent to which the corporation must act qnd may go in this respect. The statute prescribing the mode in which

an act must be performed, is a negative upon all other modes for performing it. Whence it is manifest that the inhabitants of the town were not parties to the cause of action. They could not, therefore, be parties toj the suit, for the plain reason that they had violated no legal! duty. A suit is but a remedy given by law to enable a party who has been injured by the act or violation of duty by another, to recover damages equal to the injury or loss sustained.

If the duty never existed, it could not be violated; and without both its existence and violation, there was no ground for a suit against the inhabitants of the corporation. But there is still another light in which this question may be presented. If the doctrine be true, that the inhabitants of an incorporated town are by operation of law parties to all suits by or against such corporation, then it follows, that however just his claim may be, an inhabitant .could not, under any circumstances, either maintain a'suit or enforce a judgment against the corporation.

The moment he appears as a plaintiff on the record, the law makes him a defendant jointly with the corporation in the same action. And if he should be so fortunate as to escape a plea in abatement, or a demurrer, if the fact appeared of record, and obtain his judgment, his own property would be as much liable as that of any other inhabitant, to satisfy the execution. This shows to what the doctrine must .lead, and, consequently, its utter absurdity.

We will now proceed to consider the second question stated in Angelí and Ames, in this language, to wit: “ If a power to sue the corporation is given by statute, each inhabitant is liable to satisfy the judgment.” This doctrine, in certain cases, is unquestionably correct; but it has no application to a corporation like that of the town of Grand Gulf, or the city of Bridgeport, spoken of in Beardsley v. Smith.

The rule is this; that whenever either the common law or a statute requires the inhabitants of a particular district of country, such as a county town or hundred in England, to perform certain duties, and they fail in this respect, in consequence of which a statute authorizes a suit by the party injured against the inhabitants, then the judgment in such case may be wholly satisfied out of the property of any one of said inhabitants. This is all according to reason and the principles of the common law. The duty required was, in the first instance, joint and several.

Every inhabitant was bound to aid in its performance. All' were implicated in its violation, which occasioned the suit. The judgment, in being also joint and several, only partook of the nature of the cause of action upon which it was founded. This was the operation of judghie'nts recovered under the statute of Winton, till its amendment by the act of 43d Elizabeth, which required such judgments to be satisfied by a tax levied equally upon the inhabitants of the hundred.

Here, as we humbly conceive, lies the error into which these [learned tribunals have fallen, in not properly discriminating between a duty, in the performance of which the law required every mkn in the particular district to aid, and for a breach of which all were liable, and a mere power delegated to a corporation for certain specified purposes. The charter, in this instance, only requires the inhabitants of the town to perform such obligations as the corporate authorities may legally impose upon them; The only obligation which could be thus imposed, is the tax provided for in the tenth section.

A failure to impose this tax, or a failure to pay it by the inhabitants, does not make'them liable to a judgment against the corporation, for the plain reason that it constituted no cause of action in the first instance. A judgment is only the means provided by law to enable the creditor to get that to which he was entitled before judgment. A creditor could not maintain a suit against any or all of the inhabitants, merely because they were liable to pay a certain tax, and had failed to pay it.

Upon what principle, then, can he resort to their property, for the purpose of discharging a judgment against the corporation, to which they are not parties, and against whom a recovery could not have been had, even if they had been parties ? But it is said, that the corporation exercised a portion of the governing power of the State, and, therefore, could exercise its discretion in creating liabilities against the inhabitants of the town. It is true, that the corporation is invested with a subordinate political power, but it is only such as is expressly granted by the charter.

To this extent the inhabitants of the town only agreed to submit to the jurisdiction of the corporation, and the additional barde us which it might impose. Thus acting, it is the creature of law, and can never oppress those under its jurisdiction. ’Without this restraint its power is arbitrary and despotic, and may be used by the corporate authorities for their own selfish purposes.

The whole ease must at last turn upon the question, whethjfe the corporation in its action must be confined strictly to ¡the grants contained in the charter, or whether it may exereis|fan unlimitéd authority over the inhabitants of the town. . Iwwe adhere to the first position, the case for the appellant cannot even be made plausible under. tl)e charter. The corporation possessed no authority to make the people of the town parties to the cause of action, or to the suit, or to make their property liable to the judgment, except in the shape of a tax.

It makes no difference, that the appellee is one of the selectmen. He is only one of seven, and could not alone either levy or enforce a tax under the charter. If he has failed to perform his duty as a corporator, the law gives a remedy against him as well as the others by mandamus, to compel them to levy the tax named. He can only be known'in the present controversy as an individual, and his rights as such determined. There is no judgment in the record from which an appeal could be prosecuted. The case will, therefore, be dismissed.