James v. Trustees of Wellston Tp.

• Decision Date: 13 February 1907
• Citation: 90 P. 100,18 Okla. 56,1907 OK 22
• Parties: JAMES v. TRUSTEES OF WELLSTON TP.
• Court: Oklahoma Supreme Court

90 P. 100

18 Okla. 56, 1907 OK 22

JAMES v. TRUSTEES OF WELLSTON TP.

Supreme Court of Oklahoma

February 13, 1907

Syllabus by the Court.

In the absence of express statute imposing a liability on townships for injuries sustained from defects in highways, such townships, in this territory, are not liable in a civil action for damages for neglect of public duty in failing to keep the highways in a safe and proper condition.

[Ed Note.-For cases in point, see Cent. Dig. vol. 25, Highways, § 505.]

Error from District Court, Lincoln County; before Justice John H Burford.

Action by S. A. James against the trustees of Wellston township. Judgment for defendant, and plaintiff brings error. Affirmed.

This was an action brought in the district court of Lincoln county by the plaintiff in error against the defendant in error, to recover the sum of $5,055 for injuries sustained in a runaway accident on the 3d of April, 1905. The petition alleges that the accident was caused, and the injuries complained of sustained, by reason of a defective highway of defendant township. A demurrer was interposed to the petition in the court below, and was sustained by that court. The plaintiff in error refusing to plead further, judgment was rendered in favor of the defendant in error, whereupon the plaintiff duly filed his petition in error in this court, alleging error in the ruling of the court on the demurrer.

Ira A Billingslea, for plaintiff in error.

A. J Rittenhouse, Geo. B. Rittenhouse, and J. S. West, for defendant in error.

IRWIN J.

As the main point in contention in this case is as to the liability of a township for failure and neglect of its officers in failing to keep in repair the roads and bridges in the township, and as the petition in this case places plaintiff's right to recover solely upon this ground, it will be unnecessary to set out the petition in full. The objection raised, by the defendant in error, in the court below, to plaintiff's right to recover, was that the petition stated no cause of action. It was contended by the plaintiff that, as the law invested the corporate trustees of the township with the power, and charged them with the duty, of maintaining and keeping in repair the highways of said township, in case of failure or neglect to perform that public duty, they thereby became liable in damages to any person who might sustain injuries, in consequence of their failure to keep the highways in repair. This proposition was denied by the defendant, and this raised the issue, and the only issue necessary to be considered in determining this case. In deciding this proposition, it is necessary that it be constantly borne in mind the distinction which exists in the law between municipal corporations, such as incorporated cities and villages, and what is known as quasi corporations, such as counties, townships, school districts, and the like.

In some states it is held that municipal corporations proper are, without any express statutory provisions to that effect, liable for all injuries caused by defective highways, on the theory that being invested with the exclusive control over the highways within their limits, and having ample power to raise money for their construction and repair, it is their duty to keep the highways in a reasonable and safe condition, for failure to perform which they are subject to corresponding liability. But, on the other hand, it has been held that quasi municipal corporations are not liable for defects in the highways, unless they are expressly made so by statute; the theory on which they are distinguished from municipal corporations proper being generally stated to be that they are mere agencies of the state. We think the correct theory on which it is held that quasi corporations, such as counties and townships, are exempt from liability, is that they are but auxiliary parts of the sovereignty. The sovereignty is vested in the state for the purpose of carrying out the political powers of the state, and, for convenience, the state is divided into counties, the counties are divided into townships, and the townships are divided into road districts. These subordinate divisions being merely component parts of the great body politic of the state, and as public policy would dictate that the state, for a failure to perform a public duty, would not be liable in civil damages to a citizen, the same rule would apply as to subordinate political subdivisions of the state. It might be urged that no distinction reasonably exists between the case of a municipal corporation, which is ordinarily held liable in damages for failure to perform these duties, and counties and townships; but we think the distinction is that, in such municipal corporations as incorporated cities and villages, the power creating such municipal corporation and defining their powers places the entire subject in their charge. They are not only invested with power, but they are charged with the duty, of keeping and maintaining the streets and highways within their limits, and they are also given power to provide the necessary means to discharge this duty, and are clothed with authority to levy taxes to meet the emergencies that necessarily would arise in consequence of their being charged with liability for damages. And while, in some respects, and to a limited degree, townships in this territory are clothed with authority to levy taxes and pay a certain person to assess and collect taxes for road and bridge purposes, still there is no statute which authorizes the township officers generally to impose and collect taxes, and no provision is made for collecting taxes such as would be necessary to meet the demands that would necessarily be made upon such township, if they were held liable for damages in such cases. We think a distinction should be observed between proper aggregate corporations, and the inhabitants of any district who are by statute invested with particular powers without their consent; in the books such as are sometimes called quasi corporations, and of such are the counties and townships of this territory. A county is a mere local subdivision of a state created by it, without the request or consent of the people residing therein. They do not receive any special favors, privileges, or benefits, but the law imposes upon them burdens which they are required to carry out in the interest of the state which created them. From the earliest history of the country, to the present time, the decisions of the courts have been almost unanimous in holding that counties and townships and other quasi municipal corporations are not liable at common law for injuries sustained by reason of a failure to repair highways or bridges, and are only held liable when the liability is created by statute. Now, in the case at bar, it is conceded that there is no statute of this territory expressly creating this liability; hence, if a liability exists, it must have existed at common law. Perhaps there is no other question that has received more frequent consideration by the courts of this country than this one, and none where the decisions have been more in harmony and of one accord. It is true that there are three or four states holding adversely to this contention, notably Iowa, Maryland, and Pennsylvania; but we think an examination of the authorities will convince that the great weight of authority is with the doctrine of the nonliability of townships under the conditions set forth in this petition.

The Supreme Court of the state of Maine, in the case of Sanford v. Augusta Township, reported in 32 Me. 536, in a case against the township, held that a recovery could be had only because the action is given by statute, and expressly held that there is no common-law liability.

In the case of Vail v. Town of Amenia, reported in 4 N.D. 239, 59 N.W. 1092, the Supreme Court of that state say: "While the duty to repair and maintain highways and bridges may, in this state, devolve upon civil townships, and while such townships may, within certain limits, be empowered to raise revenues for such purposes, yet, in the performance of such duty, the township acts as the intermediator of the state, and, in the absence of any statute fixing the liability, the township shares with the state that immunity from liability from the act or negligence of its officers which the state enjoys. The fact that in this state civil townships are organized only on petition of a majority of the resident voters therein does not change the rule of nonliability."

The Supreme Court of the state of Kansas, in the case of Eikenberry v. Bazaar Township, reported in 22 Kan. 556, 31 Am. Rep. 198, which was an action brought by Emeline Eikenberry, September 3, 1878, to recover from the township of Bazaar, Chase county, damages for personal injuries alleged to have been occasioned on account of the impassability of a public highway. To this petition the township demurred, and the demurrer was sustained by the court, to which the plaintiff excepted and brought the case to the Supreme Court for review. In the opinion, written by Horton, C.J., the court says: "The principal question presented is whether a township in this state is liable for injuries caused by unsafe and defective highways. In the absence of an express statute imposing a liability, the authorities uniformly hold that organizations such as counties, townships, school districts, road districts, and the like, though possessing corporate capacity and power to levy taxes and raise money, have been considered not to be liable for neglect of public duty. The theory of these various decisions is, in effect, that such organizations though corporations, exist as such only for the purposes of the general political government...