City of Arkadelphia v. Windham

• Decision Date: 07 May 1887
• Citation: 4 S.W. 450
• Parties: CITY OF ARKADELPHIA <I>v.</I> WINDHAM.
• Court: Arkansas Supreme Court

4 S.W. 450

CITY OF ARKADELPHIAv.

WINDHAM.

Supreme Court of Arkansas.

May 7, 1887.

Appeal from circuit court, Clark county.

Action by Windham, appellee, against the city of Arkadelphia, appellant, to recover $110 as damages for injuries sustained by his horse and wagon by reason of a defective railway crossing within the corporate limits of the said city. There was a demurrer to the complaint, which was overruled. The case was tried to a jury, which returned a verdict for the plaintiff for $116, on which there was a remittitur of $6, and a judgment for the plaintiff for $110. The city thereupon took this appeal.

Crawford & Crawford, for appellant.

BATTLE, J.

It is the duty of incorporated towns and cities of this state to keep their streets in repair, but no statute, expressly or by implication, makes them liable to a private action by an injured party for damages sustained by reason of a failure to discharge the duty. In the absence of such a statute, are they liable to a civil action by an individual for such damages? Upon this question the authorities are not agreed, and differ as to where the weight of authority lies. But, while they differ in this respect, they are almost unanimous in holding that an action cannot be maintained against counties or parishes, unless authorized by statute, for damages sustained through their neglect to keep their bridges and highways in repair, although the duty of doing so is clearly enjoined upon them by law, and they have authority to collect taxes, or make adequate assessments for that purpose. It was so held by this court in Granger v. Pulaski Co., 26 Ark. 37. The reason of this rule is they are a part of the machinery of the state government, and their functions are wholly of a public nature, and their creation a matter of public convenience and governmental necessity. The reason for the application being the same, it is difficult to understand why this rule does not apply and should not be enforced as to incorporated towns and cities in respect to streets; for, like counties, they are a part of the machinery of the state, and are its auxiliaries in the important business of municipal rule and internal administration, and their functions are almost wholly of a public nature. Like counties, their functions, rights, and privileges are under the control of the legislature, and may be changed, modified, or repealed, as a general rule, as the exigencies of the public service or the public welfare may demand. Like counties, they can sustain no right or privilege, or their existence, upon anything like a contract between them and the state, because there is not and cannot be any reciprocity of stipulation, and their objects and duties are wholly incompatible with everything of the nature of a compact. The duty of keeping in repair the public highways in their respective limits is imposed on both for the benefit of the public, without any consideration or emolument received by either. Before the incorporation of the town or city, the county was charged with the duty of keeping its highways in repair. When the town or city becomes incorporated, that duty is transferred to the town or city,—from one governmental agency to another. The object, purpose, reason, and character of the duty...