Leoni v. Taylor

• Decision Date: 12 April 1870
• Citation: 20 Mich. 148
• Court: Michigan Supreme Court
• Parties: The Township of Leoni v. Ebenezer Taylor

20 Mich. 148

The Township of Leoni v. Ebenezer Taylor

Supreme Court of Michigan

April 12, 1870

Heard April 6, 1870 [Syllabus Material] [Syllabus Material]

Error to Jackson Circuit.

This was an action on the case brought by Ebenezer Taylor against the Township of Leoni. The declaration averred the existence in the township of Leoni, of a certain public highway which crosses a stream; that over and across said stream, is a bridge which belongs to and is a part of such public highway "and that defendant was authorized and compelled by law to keep such bridge in repair, and safe for the use of the public, as aforesaid; that said bridge was defective, out of repair and unsafe," &c., and further averring that "while in the act of crossing the aforesaid bridge, and without any fault or negligence on his part, and by reason of said bridge being defective and out of repair," the plaintiff's horses were injured, and that by reason of such injuries, the said plaintiff is greatly damnified &c.

The plea was the general issue.

On the trial the defendant requested the Circuit Judge to charge the jury:

First.--That there is no liability in any event on the part of the township to this action.

Second.--That the only power the township has over the repair of highways and bridges, is that which it may exercise at the annual meeting.

Third.--That the township is not liable for the neglect of the Commissioners of Highways, or for the neglect of the Overseers of Highways.

Fourth.--That the township has no power to give the slightest direction or instruction to these officers as to the performance of their duties.

The Circuit Judge refused so to charge; and the defendant excepted. The jury rendered a verdict for the plaintiff, and the judgment entered thereon is brought into this Court by writ of error.

Judgment of the Court reversed with costs.

John D. Conely, for plaintiff in error.

I. At common law there was no obligation on the part of townships to keep highways in repair.--Morey v. Newfane, 8 Barb. 645; Hickok v. Trustees, &c., 15 Barb. 427; Fishkill v. Fishkill, &c., 22 Barb. 634; Galen v. Clyde, &c., 27 Barb. 551; Peck v. Batavia, 32 Barb. 638; Commissioners v. Martin, 4 Mich. 557.

II. The township has no power to give directions to the Highway Commissioners, or other town officers respecting their duties, and the township officers are in no sense the agents or servants of the township; nor is the township in any way responsible for the neglect of the Commissioners or Overseers.--Lorillard v. Monroe, 12 Barb. 161; S. C. 11 N. Y., 392; Onderdonk v. Brooklyn, 31 Barb. 505; Martin v. Brooklyn, 1 Hill 545.

III. It is unnecessary here to consider whether the principle upon which cities and villages are made liable in similar cases, arises in the nature of a contract or not, for the reason that in such cases the duty is directly imposed by statute, and means adequate are provided.--Cole v. Medina, 27 Barb. 218; Beard v. Brooklyn, 31 Barb. 142; Conrad v. Ithaca, 16 N. Y., 158; West v. Brockport, 16 N. Y., 161.

IV. The extent of the duty resting upon a township or city depends upon the means provided for its performance; and while responsible for neglect where reasonable diligence has not been exercised, it is not responsible where it is not reasonably capable of acting efficiently by its proper agencies. --Detroit v. Corey, 9 Mich. 175, 190; Dewey v. Detroit, 15 Mich. 312, 317; Commissioners v. Martin, 4 Mich. 557, 560.

V. A township is not liable for the misfeasance or nonfeasance of one of its officers in respect to a duty specifically imposed upon such officer, but the remedy is against the delinquent officer himself.--Fish v. Dodge, 38 Barb. 163, 172; Robinson v. Chamberlain, 34 N. Y., 389.

VI. Since the decision in 4th Michigan, no additional powers respecting highways have been given to townships, nor have any additional duties been imposed.

VII. The only question is as to the construction of the act of 1861.--Laws 1861, pp. 407, 408.

VIII. Statutes in derogation of the common law must be construed strictly, and their provisions can be enforced no further than they are clearly expressed.--Sibley v. Smith, 2 Mich. 490.

IX. Statutes passed against the plain and obvious principles of common right and common reason, have by some writers been thought to be null and void so far as they are calculated to operate against those principles. At any rate, statutes ought to be construed to avoid, so far as may be, any violation of those principles. 1 Bishop Criminal Law, see 53-54; People v. Gallagher, 4 Mich. 244, 248; Cochran v. Van Surlay, 20 Wend. 381, 382; Donaldson v. Wood, 22 Wend. 365, 396.

X. It is not necessary to claim that this act is void. It is effective as to corporations, other than townships, but further legislation is needed to give it full effect in townships. Until the Legislature shall impose some duty on townships respecting highways, and shall provide agencies adequate to the performance of such duties, the statute remains suspended as to such townships. It is not unreasonable to suppose that the Legislature of 1861 expected that further legislation should be had.

D. Johnson, for defendant in error.

The Court in this case was requested to charge, in substance, that the statute of 1861, page 407, was a nullity so far as it relates to townships, that no liability was imposed upon them by the said statute; and error is assigned upon the refusal so to charge, and this leads to the construction of said statute.

Now the construction of the statute must depend upon the sense in which the Legislation used the term duty.

We concede they did not intend by this act to impose any newer duties upon townships, but it is certain they did not intend to make townships liable for injuries of this character. The argument advanced is that no duty can be imposed without a penalty. The well considered case of the Commissioners of the Township of Niles v. Nathaniel Martin, decided by this Court and reported in 4 Mich. 556, holds that townships are not liable to damages at the suit of a party injured, but it by no means decides that it is not the duty of townships to keep in repair the highways and bridges of their respective townships. They are not liable to damages, but it nevertheless is a duty imposed by law, and the Legislature so understood it, otherwise the act of 1861 is of no force.

It becomes the duty of each township to annually elect Commissioners and Overseers of Highways, and it becomes their duty to keep the highways and bridges in repair, and a tax is assessed for that purpose, and these officers are required to give bonds to their respective townships for the faithful performance of their duties. See chap. 12 Compiled Laws. Then in what sense can it be said townships have no duties in this regard.

Among the many rules laid down in the books for a contruction of statutes, it is proposed for the purposes of this case to refer to one, 1 Kent, p. 467, "For the sure and true interpretation of all statutes, whether penal or beneficent, four things are to be considered. What was the common law before the act? What was the mischief against which the common law did not provide? What remedy the Parliament had provided to cure the defect? And the true reason of the remedy? It was held to be the duty of the Judges to make such a construction as should repress the mischief and advance the remedy."

The mischief and the remedy are, then, the main things to be taken into consideration. What was the mischief? Why, that townships could with impunity suffer their highways and bridges to get out of repair. What is the remedy? To make them pay damages, and that is sufficient for the purpose. And if that was not the intention of the Legislature then the whole act is nugatory and to declare that, would violate another rule of construction, viz: that courts will give some effect to statutes where it is possible. And we...