Madden v. Lancaster County, 476.

• Decision Date: 03 December 1894
• Docket Number: 476.
• Citation: 65 F. 188
• Parties: MADDEN v. LANCASTER COUNTY.
• Court: U.S. Court of Appeals — Eighth Circuit

65 F. 188

MADDEN v. LANCASTER COUNTY.

No. 476.

United States Court of Appeals, Eighth Circuit.

December 3, 1894

G. M Lambertson, for plaintiff in error.

Charles O. Whedon and W. H. Woodward, for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge.

In 1889 the legislature of the state of Nebraska passed an act entitled 'An act relating to highways and bridges and liabilities of counties for not keeping same in repair,' by which, for the first time in the history of that state they expressly gave a right of action against a county for damage resulting from its neglect to maintain and keep in suitable repair the highways and bridges in its charge, on the express condition that the action so authorized should be commenced within 30 days of the time when the injury or damage occurred. Section 4 of that act, which gives this right of action, reads as follows:

'If special damage happens to any person, his team, carriage, or other property by means of insufficiency, or want of repairs of a highway or bridge, which the county or counties are liable to keep in repair, the person sustaining the damage may recover in a case against the county, and if damages accrue in consequence of the insufficiency or want of repair of a road or bridge, erected and maintained by two or more counties, the action can be brought against all of the counties liable for the repairs of the same, and damages and costs shall be paid by the counties in proportion as they are liable for the repairs; provided, however, that such action is commenced within thirty (30) days of the time of said injury or damage occurring. ' Sess. Laws, Neb. 1889, p. 77; Consol. St. Neb. 1891, Sec. 1934.

The plaintiff in error brought an action against the defendant in error, the county of Lancaster, for damages caused by a defective bridge, more than 30 days after his injury occurred. The defendant in error demurred to the plaintiff's petition, which disclosed this fact, on the ground that it did not state facts sufficient to constitute a cause of action, and its demurrer was overruled. The defendant then answered, among other things, that the action ought not to be maintained because it was not brought within 30 days of the time when the injury or damage occurred. The case was tried to a jury, and a verdict rendered for the plaintiff.

Section 440 of the Code of Nebraska provides that 'where, upon the statements in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court, though a verdict has been found against such party. ' Consol. St. Neb. 1891, Sec. 4965.

After the verdict, and upon the motion of the defendant, the court rendered a judgment in its favor upon the statements in the pleadings, and this is the error complained of.

The constitution of the state of Nebraska declares that no special law shall be passed by the legislature of that state, 'laying out, opening, altering and working roads or highways * * * regulating the practice of courts of justice * * * granting to any corporation, association, or individual any special or exclusive privileges, immunity or franchise whatever,' and provides that 'in all other cases where a general law can be made applicable no special law shall be enacted. ' Const. Neb. art. 3, Sec. 15. That constitution also provides that 'all corporations may sue and be sued in like cases as natural persons' (Id. art. 13, Sec. 3), and that 'no bill shall contain more then one subject, and the same shall be clearly expressed in its title. And no law shall be amended unless the new act contains the section or sections so amended, and the section or sections so amended shall be repealed' (Id. art. 3, Sec. 11). When the act of 1889, in question, was passed, the time in which actions for negligence could be commenced was limited to four years by the General Statutes of the state. Consol. St. Neb. 1891, Secs. 4541, 4548, 4552.

The chief contention of counsel for plaintiff in error in this case is that the proviso of the act of 1889 limiting the time within which actions for negligence may be brought thereunder is in violation of these provisions of the constitution. He maintains that the condition of the grant of the cause of action by the act of 1889, that it must be commenced within 30 days after the injury, is unconstitutional, because it grants special immunity to counties, from actions for negligence, during all but 30 days of the 4 years within which they may be brought against others, and because it is in effect an amendment of the general statute of limitations on this subject, and does not contain or repeal the section amended. Stated in syllogistic form, the argument is: Counties in Nebraska are corporations, and, in the absence of the act of 1889, they were liable to actions for injuries caused by their negligence in the care of highways and bridges for the same term (4 years) that other corporations and individuals were liable to such actions under the general statute of limitations of that state. The act of 1889 relieved them from such liability during all but 30 days of the 4 years, while it left all other parties liable to actions for negligence for the entire 4 years. Therefore, the act of 1889 granted special immunity from these actions to counties, and amended the general statute of limitations without containing or repealing the section it amended. It is obvious that, unless the first proposition or the major premise of this syllogism is sound, the conclusion will not follow, and cannot be maintained. If that proposition is unsound; if, in the absence of the act of 1889, counties in Nebraska were not liable to actions for injuries caused by their negligence in the care of highways and bridges-- then the act of 1889 granted no immunity to them, but, on the contrary, fastened a liability and imposed a burden upon them. It made them liable to actions for damages for 30 days after injuries are caused, that they were not liable for before; and it did not amend the general statute of limitations by shortening the period within which any actions could be brought, but it granted rights of action for periods of 30 days, that, in its absence, would never have existed. Moreover, if this act was not a limitation of actions that might be maintained without it, and if it created rights of action for periods of 30 days that did not exist at all before, then it was a grant, instead of a limitation; and, even if it were unconstitutional, it would not be the limitation, but the grant, that would fall, and the effect would be, not that the action permitted could be brought after the 30 days, but that it could not be maintained at all. Counsel for the plaintiff in error fully appreciates how essential it is to his contention to establish the major premise of his argument, as we have stated it, and he meets the issue squarely. He presents an exhaustive and persuasive argument in support of the proposition that, under the common law and the statutes of Nebraska, counties are corporations, and are liable for negligence in the care of highways and bridges, regardless of the act of 1889. In support of this proposition, he cites the decisions of the supreme courts of Indiana, Iowa, Pennsylvania, and Maryland (House v. Board, 60 Ind. 580; Wilson v. Jefferson Co., 13 Iowa, 181; Commissioners v. Duckett, 20 Md. 468; Rigony v. Schuylkill Co., 103 Pa.St. 382), and asks this court to investigate and determine the question thus presented as an original proposition, upon the right and reason of the matter, regardless of the precedents established, and the decisions already rendered upon it. The question is an interesting one, and it would be a grateful task to make such an original investigation and decision of it; but fixed rules of decision, which ought to and govern the deliberations and action of this court, preclude us from entering upon it.

In the first place, the authorities cited from Indiana, Iowa Pennsylvania, and Maryland are in conflict with the great weight of authority. 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 composing the liability and permitting the action. 1 Dill. Mun. Corp. (3d. Ed.) Secs. 23, 26; 2 Dill. Mun. Corp. (3d. Ed.) Secs. 961-963; Russell v. Men of Devon, 2 Term R. 667; Barnes v. District of Columbia, 91 U.S. 540,...