Downing v. Mason County

Decision Date05 May 1888
Citation87 Ky. 208,8 S.W. 264
PartiesDOWNING v. MASON COUNTY
CourtKentucky Court of Appeals

Appeal from circuit court, Mason county.

This was an action by Charles Downing against the county of Mason to recover damages which plaintiff had suffered by reason of the alteration and obstruction of a sewer or drain by said county. Demurrer to petition was sustained, and plaintiff appeals.

Cochran & Son and T. C. Campbell, for appellant.

L. W Robertson and E. Whitaker, for appellee.

HOLT J.

The appellant avers that the appellee "unlawfully carelessly, and negligently" so changed and obstructed the course of a stream as to flood his premises. A county can necessarily act only through its agents. If liable at all for a tort, it can only be when committed by its agents, engaged in the course of its business. It is inferable from the petition that the act complained of was done by them in the erection of a county jail. Assuming this to be so, or that it was done, at least, in the course of the county's employment, and within the scope of its business proper, we reach the question involved, to-wit, is a county responsible for a tort? Formerly it was held, as to corporations proper that, as they were not created to commit wrongs, therefore it was ultra vires, and they could not do so. This has long since ceased to be the rule, however. In Railroad Co. v. Quigley, 21 How 202, the supreme court of the United States decided, as to corporations proper, that they were liable for acts done by their agents, whether in contractu or in delicto, in the course of their business and employment. To the same effect is the case of Salt Lake City v. Hollister, 118 U.S. 256, 6 S.Ct. 1055; and this is now the well-settled rule. Counties, however, are subordinate political divisions. They do not possess corporate powers under special charters, but exist by virtue of the general laws of the state, apportioning its territory into political divisions for the conveniences of government. They are a part of the machinery of the government. They are created for public purposes. Public duties are imposed upon those residing within their limits without request from them and, in order that they may properly perform them, they are clothed with certain corporate powers. They are therefore often called quasi corporations. A differnce should manifestly be drawn between them, invested, as they are, with powers and duties without their consent, and corporations proper, that obtain special privileges for the peculiar benefit of their corporators. The state may compel the citizen to the performance of his county corporate duties by means of penalties, but he does not stand in the light of a person who has for a consideration voluntarily assumed obligations so as to owe a duty, and be answerable to every one interested in its performance. In the case of municipal and ordinary corporations, it is otherwise, because they accept special charters, and presumably valuable privileges. Their creation is due to local advantage and convenience or individual benefit; while the leading object in establishing a county is to effectuate the political and civil organization of the state as to its general purposes and policy. It is an arm of the state, giving local effect to them. It looks largely to the administration of justice, the maintenance of the highways and bridges, the support of education, and kindred governmental objects. It is created at the will of the sovereign, without special regard to the consent or will of those residing in it. It is a necessary instrumentality in carrying out the policy of the state and in governing its people. It is governmental in its purpose and nature. It is not, in the strict legal sense, a municipal corporation, like a city. As a quasi corporation, it is...

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33 cases
  • Yanero v. Davis, 1999-SC-0871-DG.
    • United States
    • United States State Supreme Court — District of Kentucky
    • 21 d3 Novembro d3 2001
    ...v. Rives & McChord, 133 Ky. 477, 118 S.W. 309, 311 (1909); Hite v. Whitley County, 91 Ky. 168, 15 S.W. 57 (1891); Downing v. Mason County, 87 Ky. 208, 8 S.W. 264 (1888). To the extent that extending sovereign immunity to counties can be justified, but see Cullinan, supra, at 411-12 (Palmore......
  • Zoll v. St. Louis County
    • United States
    • Missouri Supreme Court
    • 8 d3 Fevereiro d3 1939
    ... ... County Court, 142 Mo. 583; Lamar v. Bolivar ... Special Road Dist., 201 S.W. 890; Wench v. Carroll ... County, 140 Iowa 558, 118 N.W. 900; Downing v. Mason ... County, 87 Ky. 208, 8 S.W. 264; Siewerissen v ... Harris County, 41 Tex. Civ. App. 115, 91 S.W. 333; ... Cassidy v. St. Joseph, 247 ... ...
  • Bd. of Com'rs of Jasper Cnty. v. Allman
    • United States
    • Indiana Supreme Court
    • 25 d1 Novembro d1 1895
    ...6 Ill. 567;Lorillard v. Town of Monroe, 11 N. Y. 392;Askew v. Hale Co., 54 Ala. 639;Granger v. Pulaski Co., 26 Ark. 37;Downing v. Mason Co., 87 Ky. 208, 8 S. W. 264;Reardon v. St. Louis Co., 36 Mo. 555;Swineford v. Franklin Co., 73 Mo. 279;Clark v. Adair Co., 79 Mo. 536;Gilman v. Contra Cos......
  • Board of Commissioners of Jasper County v. Allman
    • United States
    • Indiana Supreme Court
    • 25 d1 Novembro d1 1895
    ... ... 392, 62 Am. Dec. 120; ... Askew v. Hale County, 54 Ala. 639, 25 Am ... Rep. 730; Granger v. Pulaski County, 26 ... Ark. 37; Downing v. Mason County, 87 Ky ... 208, 12 Am. St. Rep. 437, 8 S.W. 264; Reardon v ... St. Louis County, 36 Mo. 555; Swineford v ... Franklin ... ...
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