In discussing this question it must be borne in mind that every allegation of the complaint is admitted in manner and form as stated. Among other allegations the plaintiffs aver that after they had become sureties on the official *453bonds of the sheriff, the defendants knowingly and illegally permitted the tax books to be delivered to the sheriff in direct violation of the statute of the State. Bev., vol. II, sec. 5241. And plaintiffs aver that in addition to the tax lists of 1905, those of 1906 were delivered to the sheriff, while they were his bondsmen, in violation of the' same law. They further aver that prior to September, 1906, before those lists had been placed in Sheriff Aman’s hands for collection, the defendants were notified by plaintiffs not to turn over the tax books for the year 1906 to Aman until a full settlement was had by the commissioners with Aman for all arrears of taxes; that Aman was financially embarrassed and behind in his accounts with the county, and that the bondsmen objected to the tax books of the county for the year 1906 being turned over before a-full settlement was had. That, notwithstanding said warning, the defendant commissioners negligently failed to make a proper or full settlement with Aman on the first Monday in September, 1906, and negligently, and contrary to their duty as required of them by law, delivered the tax books of Sampson County for the year 1906 to Aman and allowed him to collect said taxes without requiring of him a full settlement for the taxes of the previous year, and when he was at that time behind in his accounts with the said county. The plaintiffs further aver that in consequence of such violation of law they have been compelled to pay considerable sums of money recovered of them by legal process on said tax bonds.
The statute declares in express terms that the sheriff shall not be permitted to collect the taxes for any years until he shall have settled in full with the State and county for the taxes of the previous year. A pretended and fraudulent settlement such as is alleged in the complaint to have taken place will not meet the demands of the law. The complaint expressly charges a willful violation of the statute by the defendants, and upon demurrer that fact is admitted. \
The statute is mandatory, and expressly forbids the very act the defendants are charged with committing. In my opinion, this intentional violation of a positive statute forbidding the act renders the defendants not only liable to penalty and indictment, but also to such damages as may be directly 'sustained by those bondsmen of the sheriff who had previously assumed such obligation and must per force bear the loss.
The board of commissioners possesses gu¿cm-judicial, legislative and administrative powers. A willful or negligent disregard of any of their duties of whatever character by its members subjects the culpable individual to the pains and penalties of *454tbe statute, Revisal, sec. 3590; but personal liability for damages will not generally be incurred in tbe absence of malice, unless’ tbe wrongful act be purely ministerial in its nature.
Tbe wrongful and negligent acts complained of involve no exercise of judgment and discretion. Official action is judicial only wben it is tbe result of judgment and discretion. A judicial inquiry is one wbicb investigates, declares and carries out existing law, and, wben performed in good faitb, however erroneously done, tbe officer is immune so far as legal liability is concerned.
Official action is ministerial wben it is tbe result of performing a duty imposed by law, tbe details of wbicb are defined and prescribed witb sucb certainty tbat nothing is left to tbe judgment or discretion of tbe officer. Therefore, a willful violation of a statute prohibiting tbe doing of an act can never be seriously regarded as a judicial function. It is plain tbat if tbe allegations of tbe complaint be true, tbe defendants in delivering tbe tax lists to tbe sheriff'were not performing a gmsi-judieial function and cannot be clothed with tbe immunity of a judicial officer.
They were given no discretion in tbe matter, but were expressly forbidden by tbe statute to turn over tbe lists unless tbe sheriff bad settled in full for tbe previous year.
It is alleged tbat tbe defendants in performing this purely ministerial duty were guilty of gross négligence and violation of law. A ministerial officer is not liable for performing a duty imposed by statute, if done witb due care. But be is answerable in damages for nonfeasance, misfeasance or malfeasance. He is liable in a civil action for a failure or refusal to perform bis duty as well as for its negligent or illegal performance. Ferguson v. Kinnard, 9 C. and P., 251; Brayer v. MacLean, L. R., 6 P. C., 398; Dowbert v. Humbert, 91 U. S., 294; Throop on Pub. Officers, sec. 726; Méchem on Officers, sec. 664, and cases cited in notes. » A public official owes to every individual tbe duty of performing bis official acts witb reasonable care, and be is consequently liable to any individual having a special and direct interest, who is injured in person or in property by reason of bis negligence in performing a ministerial act.
This subject is discussed elaborately by Judge Qooley in Raynsford v. Phelps, 43 Mich., 342, who says: “It is immaterial tbat the duty is imposed primarily on public grounds, and therefore primarily a duty owing to tbe public; tbe right of action springs from tbe fact tbat tbe private individual receives a special and peculiar injury from the neglect in performance, wbicb it was in part tbe purpose of tbe law to protect against. It is *455also immaterial tbat a failure in performance is made by tbe law a penal offense.” This principle was settled 'in Great Britain as far back as the reports of Blackstone. Rouning v. Goodchild, 2 Blk., 906, wherein it is held that a public officer charged with ministerial duties to perform, in which a private individual has a special interest, is liable to such individual for any injury sustained by him in consequence of the failure to perform such duties. This decision has been approved in this country in the case cited from Michigan. Teall v. Felton, 1 N. Y., 537; same case, 12 How. U. S., 284; Lincoln v. Hapgood, 11 Mass.; Hayes v. Porter, 22 Maine, 371; Jeffreys v. Ankeny, 11 Ohio, 372; Brown v. Lester, 21 Miss., 392. The principle is undoubtedly sound and is not unfamiliar learning in this State. With us it has long been held that a ministerial officer is personally liable for the nonperformance of every duty prescribed by statute to the party injured and to the extent of the damage, received, and he is also liable criminally to the public. Duncan v. Stone, 4 N. C., 241; Hathaway v. Hinton, 46 N. C., 247; Holt v. MacLean, 75 N. C., 347; Morritz v. Ray, 75 N. C., 170.
The plaintiffs in this case had assumed heavy obligations for the sheriff on his official bonds and had a direct and personal interest that those officials to whom he was directly accountable should obey the law prescribed for the protection of sureties as well as the public generally. The defendants were vested in this matter with no discretionary powers. They acted in defiance of the law and disobeyed the express words of the statute by placing the tax lists in his hands when the sheriff had not fully settled the taxes for the previous year.
But it is said that although the defendants may have committed a tort in violating the statute, it is not the proximate cause of plaintiff’s loss. It is generally held that the proximate cause of an injury is one that produces the result and without which it would not occur, and one from which any man of ordinary prudence could foresee that such result was probable under all of the facts as they existed. This is the idea so well expressed by Mr. Justice Hoke in the often cited case of Ramsbottom v. R. R., 138 N. C., 41, in support of which he cites recognized authority. Tested by this definition, it is apparent that the wrongful act of the defendants was the proximate cause of plaintiff’s loss.
(1) If the defendants had obeyed the statute and refused to deliver the tax lists of 1906 to the sheriff unless he settled in full with money collected from taxes for the year 1905, it is impossi*456ble tbat tbe sheriff could have embezzled tbe taxes for 1906. Tbat is a self-evident proposition and need not be discussed.
(2) A man of ordinary prudence could easily foresee tbat such result was probable under all tbe facts as they existed. As alleged in tbe complaint, tbe defendants bad been notified by tbe plaintiff’s bondsmen tbat tbe sheriff was a defaulter and bad embezzled tbe tax money of 1905, and they were notified not to place tbe lists of 1906 in bis bands until tbe law was complied with and a full and complete settlement made for tbe previous year. A person of ordinary prudence, having tbe knowledge of tbe defendants, could easily foresee tbat if tbe sheriff bad embezzled tbe taxes for 1905 be would probably embezzle those of 1906. Suppose a merchant forbids bis bookkeeper to send money to tbe bank by a certain messenger because be suspects bis honesty, tbe bookkeeper violates instructions and tbe messenger embezzles tbe money: is not tbe disobedience of tbe bookkeeper tbe direct or proximate cause of tbe merchant’s loss, and can it be maintained tbat tbe bookkeeper would not be liable in consequence of bis act ? ■
I am of opinion tbat tbe duty imposed by tbe statute was mandatory; tbat a violation of it was necessarily a ministerial act; tbat it was tbe proximate cause of plaintiffs’ loss and tbat they bad such direct interest tbat they can maintain an action for tbe culpable negligence of defendants.
I am authorized to state that Mr. Justice Waliker concurs in this opinion.