Gunther v. Bd. of Rd. Com'rs of Cheboygan Cnty.

• Decision Date: 19 December 1923
• Docket Number: No. 80.,80.
• Citation: 196 N.W. 386,225 Mich. 619
• Parties: GUNTHER v. BOARD OF ROAD COM'RS OF CHEBOYGAN COUNTY et al.
• Court: Michigan Supreme Court

225 Mich. 619

196 N.W. 386

GUNTHER

v.BOARD OF ROAD COM'RS OF CHEBOYGAN COUNTY et al.

No. 80.

Supreme Court of Michigan.

Dec. 19, 1923.

Error to Circuit Court, Cheboygan County; Frank Shepherd, Judge.

Action by Roy K. Gunther against the Board of County Road Commissioners of Cheboygan County and the County of Cheboygan. Judgment of dismissal, and plaintiff brings error. Affirmed.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ.Homer H. Quay and Sprague & Shepherd, all of Cheboygan, for appellant.

Ward I. Waller, of Cheboygan (Prentiss M. Brown, of St. Ignace, of counsel), for appellees.

FELLOWS, J.

Acting under the provisions of Act 19 of the Public Acts of 1919, the State Highway Commissioner entered into a contract with the board of county road commissioners of Cheboygan county for the maintenance of the trunk line highways in that county during the year 1921. Under the act the county's share of the cost of maintenance was 25 per cent. and the state's share 75 per cent. The contract provided for the payment of the bills by the county and the later reimbursement by the state of its share. On September 6, 1921, the plaintiff was seriously injured in a collision of his automobile with a truck owned by defendants, and used in such maintenance work upon the trunk line highways of the county, the truck being negligently operated by defendants' incompetent agent, and the accident occurring on one of the trunk lines of the county. He brings this action to recover for the damages to his machine and for his personal injuries, setting up in his declaration the details, a résumé of which is above given. Defendants filed a motion to dismiss in the nature of a demurrer, the principal grounds being that defendants were in the performance of a governmental function, and therefore not liable. The trial judge held with defendants in their contention and dismissed the suit.

The accident was not occasioned by any defect in the condition of the highway, and plaintiff does not and cannot plant his right of recovery on Act 388 of the Public Acts of 1919. His claim is based on negligence in the selection of an agent and negligence of such agent while performing work of maintenance of the trunk line system under a contract between the State Highway Commissioner and the defendant board of county road commissioners. If the status of the board is that of a private contractor, plaintiff may recover. If the board is an arm of the state, performing a governmental function, plaintiff may not recover. The contract excludes any idea of profit to the county, and we think the act itslef excludes any idea of or right to profit by the county, district, or township.

In determining whether an act is in the performance of a governmental function, the courts have on occasions encountered difficulty in deciding on which side of the line the facts of a particular case place it; but the underlying principles which guide are quite generally agreed upon. We may, therefore, with profit, address ourselves to ascertaining and stating the general rule for our guidance, first considering a few of the many cases from other jurisdictions.

In Bailey v. Mayor, etc., of the City of New York, 3 Hill (N. Y.) 531, 38 Am. Dec. 669, a leading and much cited case, it was said:

‘But the distinction is quite clear and well settled, and the process of separation practicable. To this end, regard should be had, not so much to the nature and character of the various powers conferred, as to the object and purpose of the Legislature in conferring them. If granted for public purposes exclusively, they belong to the corporate body in its public, political or municipal character. But if the grant was for purposes of private advantage and emolument, though the public may derive a common benefit therefrom, the corporation, quoad hoc, is to be regarded as a private company. It stands on the same footing as would any individual or body of persons upon whom the like special franchises had been conferred.’

An exhaustive review of the authorities will be found in Hill v. City of Boston, 122 Mass. 344, 23 Am. Rep. 332; and that court, in Bolster v. City of Lawrence, 225 Mass. 387, 114 N. E. 722, L. R. A. 1917B, 1285, said:

‘The difficulty lies not in the statement of the governing principles of law, but in their application to particular facts. The underlying test is whether the act is for the common good of all without the element of special corporate benefit or pecuniary profit. If it is, there is no liability; if it is not, there may be liability. That it may be undertaken voluntarily and not under compulsion of statute is not of consequence.’

In Maxmilian v. Mayor, 62 N. Y. 160, 20 Am. Rep. 468, it was said by Justice Folger, speaking for the court:

‘There are two kinds of duties which are imposed upon a municipal corporation: One is of that kind which arises from the grant of a special power, in the exercise of which the municipality is as a legal individual; the other is of that kind which arises, or is implied, from the use of political rights under the general law, in the exercise of which it is as a sovereign. The former power is private, and is used for private purposes; the latter is public and is used for public purposes. Lloyd v. Mayor, 5 N. Y. 374. The former is not held by the municipality as one of the political divisions of the state; the latter is. In the exercise of the former power, and under the duty to the public which the acceptance and use of the power involves, a municipality is like a private corporation, and is liable for a failure to use its power well, or for any injury caused by using it badly. But where the power is intrusted to it as one of the political divisions of the state, and is conferred not for the immediate benefit of the municipality, but as a means to the exercise of the sovereign power for the benefit of all citizens, the corporation is not liable for nonuser, nor for misuser by the public agents.’

And in Hart v. City of Bridgeport, 13 Blatchf. 289, Fed. Cas. No. 6,149, it was said:

‘The principal difficulty which courts have experienced has been in ascertaining, clearly and accurately, the line of demarcation between public governmental duties and private or corporate duties, and has not been in the determination of the question, whether, for a refusal to discharge public duties, the corporation was or was not liable. Public duties are, in general, those which are exercised by the state as a part of its sovereignty, for the benefit of the whole public, and the discharge of which is delegated or imposed by the state upon the municipal corporation. They are not exercised either by the state or the corporation for its own emolument or benefit, but for the benefit and protection of the entire population. Familiar examples of such governmental duties are the duty of preserving the peace, and the protection of property from wrongdoers, the construction of highways, the protection of health and the prevention of nuisances. The execution of these duties is undertaken by the government because there is a universal obligation resting upon the government to protect all its citizens, and because the prevention of crime, the preservation of health, and the construction of means of intercommunication are benefits in which the whole community is alike and equally interested.’

That a distinction exists between the liability of cities many of which are acting under special charter and the liability of counties which are generally acting as an arm of the state is pointed out in many decisions. Judge Sanborn, speaking for the Court of Appeals of the Eighth Circuit, with the citation of numerous sustaining authorities in the case of Madden v. Lancaster County, 65 Fed. 188, 12 C. C. A. 566, said:

‘The general rule of law in this country and in England is, and has been for more than a century, that while cities and municipal bodies, that voluntarily accept charters from the state to govern themselves, and to manage their own local affairs, are municipal corporations proper, and are liable for negligence in the care of streets and bridges, and in the discharge of like public duties (2 Dill. Mun. Corp. [3d Ed.] §§ 1017, 1018; Barnes v. District of Columbia, 91 U. S. 540, 550, 551, and cases cited), counties, townships, school districts, and road districts are not municipal corporations proper, and are not liable for such negligence. The latter, even when invested with corporate capacity and the power of taxation, are but quasi corporations, with limited powers and liabilities. They exist only for the purpose of the general political government of the state. They are the agents and instrumentalities the state uses to perform its functions. All the powers with which they are intrusted are the powers of the state, and the duties imposed upon them are the duties of the state; and inasmuch as the sovereign power is not amenable to individuals for neglect in the discharge of public duty, and cannot be sued for such neglect without express permission from the state itself, so these quasi corporations, its agents, are not liable for such negligence, and no action for damages arising therefrom can be maintained against any of them, in the absence of an express statute imposing the liability and permitting the action.’

The Supreme Court of Missouri, in Cassidy v. City of St. Joseph, 247 Mo. 197, 152 S. W. 306, thus states the rule:

‘Neither the state nor those quasi corporations consisting of political subdivisions which, like counties and townships, are formed for the sole purpose of exercising purely governmental powers, are, in the absence of some express statute to that effect, liable in an action for damages either for the nonexercise of such powers, or for their improper exercise, by those charged with their execution. This applies alike to the acts of all persons exercising these governmental functions,...