O'Brien v. Rockingham County

• Decision Date: 06 February 1923
• Citation: 120 A. 254
• Parties: O'BRIEN v. ROCKINGHAM COUNTY et al.
• Court: New Hampshire Supreme Court

120 A. 254

O'BRIEN

v. ROCKINGHAM COUNTY et al.

Supreme Court of New Hampshire. Rockingham.

Feb. 6, 1923.

Transferred from Superior Court, Rockingham County; Young, Judge.

Action by Jeremiah O'Brien against County of Rockingham and another. Defendants' motion for directed verdict granted subject to plaintiff's exception. Exceptions overruled.

Case for negligence. The plaintiff, while confined in the Rockingham county workhouse, was put to work by one of the commissioners on a hospital the county was building, and was seriously injured by the negligence of the county and the commissioners in providing an unsafe staging.

The defendant's motion for a directed verdict was granted subject to the plaintiff's exception.

Bartlett & Mitchell, of Portsmouth, for plaintiff.

Jeremy R. Waldron, of Portsmouth, for defendant Rockingham County.

PARSONS, C. J. "Each county is a body corporate for the purpose of suing and being sued." P. S. c. 24, § 1. But, as said In Eastman v. Meredith, 36 N. H. 284, 289, 72 Am. Dec. 302, of the similar statutory declaration as to towns (R. S. c. 31, § 1; P. S. c. 40, § 1), "declaring them to be corporations, cannot confer upon them other powers or subject them to other duties than those which are conferred and Imposed either by express provision of some statute, or are implied from the general character and design of such public corporations." Markey v. County, 154 N. Y. 675, 679, 49 N. E. 71, 39 L. R. A. 46.

"It is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission; but it may, If it thinks proper, waive this privilege, and permit itself to be made a defendant in a suit by individuals, or by another state." Beers v. Arkansas, 20 How. 527, 529 (15 L. Ed. 991). "* ** In its own courts [a state] cannot be made an involuntary defendant. It is not constitutionally bound to give to its school-teachers, to those who support its paupers, lend it money, sell it real or personal property, or make and repair its roads and buildings, * * * or to any class of contractors, creditors, or claimants, a right of action, civil or criminal, against itself." Wooster v. Plymouth, 62 N. H. 193, 204, 205; Doolittle v. Walpole, 67 N. H. 554, 38 Atl. 19.

If this were a suit against the state for injury through the warden's lack of care by a convict in the state prison or by one, not a convict, employed to make repairs there, the fact that no statute authorizes such a suit would be all the answer required.

"The doctrine, that the purpose of the creation of municipal corporations by the state is to exercise a part of its powers of government, is universally recognized. Hill v. Boston, 122 Mass. 344, 380. * * * Counties are subdivisions of the state, in which some of the powers of the state government are exercised by local functionaries for local purposes. State v. St. Louis, 34 Mo. 546, 570, 571. Counties are nothing more than certain portions of territory into which the state is divided for the more convenient exercise of the powers of government. They form together one political body in which the sovereignty resides. Maryland v. B. & O. R. Co., 3 How. 534, 550." Wooster v. Plymouth, 62 N. H. 193, 208.

Counties generally differ from incorporated towns or cities in the extent of the corporate powers bestowed upon them. They have been called quasi corporations. Their powers are generally purely governmental, and, exercising' only sovereign power, they are, in the absence of a statute imposing liability, generally held not liable to persons injured by their neglect of duty. Dill. Mun. Corp. (2d Ed.) vol. 1, c. II, § 10a, p. 97; Id. vol. 2, § 762, pp. 871, 872; 15 C. J. pp. 388-390, §§ 1, 2; Id. §§ 272, 274, pp. 568, 570; 7 R. C. L. pp. 923-926, §§ 2-5; Id. pp. 954-958, §§ 29-31.

Counties were here first created by the provincial act of April 29, 1769 (3 N. H. Laws [Batch.] p. 524). The occasion for the act which divided the province into five counties was the fact, as stated in the preamble to the act, that the holding of sessions of the superior court of judicature solely at Portsmouth or Exeter had "rendered the Administration of Justice very expensive & Difficult & in some Cases almost Impracticable, the People being Generally not of Sufficient ability to Travel far." To remedy this evil the act, after defining the geographical boundaries of the counties provided for sessions of the courts in each, and placed upon the counties the duty of "Building, Inspecting & repairing all Prisons, Courthouses, and other Necessary Public Edifices within their respective Counties." The execution of these powers and the assessment of taxes to provide the requisite money therefor was placed with the Court of General Sessions of the Peace. When this court was abolished in 1794 its powers except as to the assessment of taxes were transferred to the court of common pleas. The power to grant taxes was given to the representatives to the general court from the towns in the county thereby constituting the county convention; the duties of the counties being in the meantime increased by placing upon them the support of certain paupers.

In 1855 the office of county commissioner was created, and "all the power and authority in relation to the financial affairs and the management and control of the property of the county and the disposal and support of county paupers, which the court of common pleas" then had, was granted these officers. Laws 1855, c. 1659, § 37. So far as the present question is concerned, the powers of the counties are confided to these two bodies, the county convention and the county commissioners. The former have power to "raise county taxes, and to authorize the purchase of real estate for the use of the county, the sale and conveyance of its real estate, the erection, enlargement, or repair of its buildings exceeding an expense of one thousand dollars, and the issuing of bonds for its debts" (P. S. c. 24, § 4), while the commissioners have the general management and control of the financial affairs of the county and the management and control of its property except as limited by the powers conferred on the county convention (P. S. c. 27, §§ 3-7, 10, 13-15; Brown v. County, 69 N. H. 130, 36 Atl. 874). The county convention in the absence of special legislative authority has no power to appoint a committee to act with the county commissioners in the performance of duties committed to them. Brown v. Reding, 50 N. H. 336; Hackett v. Rockingham Co., 52 N. H. 617. The result of this legislation is a division of the state for the administration of justice, the restraint of minor criminals, and the relief of paupers.

The administration of these sovereign powers into 5 (now 10) geographical divisions, instead of 1, did not make the acts of administration, restraint, or relief any the less acts of sovereignty. No ground appears for ascribing private corporate powers to counties. Their powers and duties are purely governmental. The county commissioners performing duties originally considered so nearly of a judicial nature as to be imposed upon a court are with equal clearness public officers, and not servants or agents of the counties.

As the counties are merely geographical divisions of the state for the convenient exercise of sovereign power each for that purpose represents the state and is the state, and is not suable for default in the exercise thereof in the absence of a statute permitting such suit. Wooster v. Plymouth, 62 N. H. 193, 204, 205, 221.

No decision of this court has been cited or found as to the liability of a county for negligence of itself or its officers. Numerous cases in other jurisdictions denying liability are noted in the citations from Corpus Juris and Ruling Case Law, supra. Upon the question of the similar liability of towns as municipal corporations our cases are numerous. "Nonliability has not been put upon the same ground in all cases: nor have the cases in which liability was found to exist all depended upon a common rule." Rhobidas v. Concord, 70 N. H. 90, 111, 47 Atl. 82, 85 (51 L. R. A. 381, 85 Am. St. Rep. 604). But the cases all agree in holding that a municipal corporation is not liable in an action of tort to a person injured by its negligence in the performance of a public governmental duty imposed upon it by statute or by the negligence of persons nominally its officers while acting, not as servants or agents of the municipality, but as independent officers. Creier v. Fitzwilliam, 76 N. H. 382, 83 Atl. 128; Gates v. Milan, 76 N. H. 135, 80 Atl. 39, 35 L. R. A. (N. S.) 599; Wheeler v. Gilsum, 73 N. H. 429, 62 Atl. 597, 3 L. R. A. (N. S.) 135; Connor v. Manchester, 73 N. H. 233, 60 Atl. 436; Lockwood v. Dover, 73 N. H. 209, 61 Atl. 32; O'Brien v. Derry, 73 N. H. 198, 60 Atl. 843; Hall v. Concord, 71 N. H. 367, 52 Atl. 864, 58 L. R. A. 455; Rhobidas v. Concord, 70 N. H. 90, 47 Atl. 82, 51 L. R. A. 381, 85 Am. St. Rep. 604; Gross v. Portsmouth, 68 N. H. 266, 33 Atl. 256,73 Am. St. Rep. 586; Doolittle v. Walpole, 67 N. H. 554, 38 Atl. 19; Sargent v. Gilford, 66 N. H. 543, 27 Atl. 306; Wakefield v. Newport, 62 N. H. 624; Clark v. Manchester, 62 N. H. 577; Edgerly v. Concord, 62 N. H. 8, 13 Am. St. Rep. 533; Eastman v. Meredith, 36 N. H. 284, 72 Am. Dec. 302.

In one of the above cases, Doolittle v. Walpole, 67 N. H. 554, 38 Atl. 19, the plaintiff claimed damages against the town for injury received from the unsuitable condition of the town "lockup" in which he was confined. In Gates v. Milan, 76 N. H. 135, 80 Atl. 39, 35 L. R. A. (N. S.) 599, the plaintiff's claim was...