Mattson v. City of Astoria

CourtSupreme Court of Oregon
Citation65 P. 1066,39 Or. 577
PartiesMATTSON v. CITY OF ASTORIA.
Decision Date16 August 1901

Appeal from circuit court, Clatsop county; T.A. McBride, Judge.

Action by Henry Mattson, guardian ad litem for Susan Mattson against the city of Astoria. From a judgment for plaintiff defendant appeals. Affirmed.

A.M. Smith, for appellant.

George Noland, for respondent.

BEAN C.J.

This is an action against the city of Astoria to recover damages for an injury alleged to have been caused by its failure to keep one of its public streets in repair and suitable for travel. The validity of a clause of the city charter exempting the city and the members of the council from liability in such cases is the only question presented by this appeal. By its charter, the city, the power and authority of which are vested in the mayor and common council (Sess.Laws 1891, p 280), is given control and management of the streets, and authority to raise money for their improvement and repair (Sess.Laws 1895, p. 556, §§ 75, 77, 79); and the common council is vested with the express authority "to assess levy and collect taxes for general municipal purposes," and to provide "for the cleaning and repairing" of streets ( Id. p. 564, § 38). The charter also provides that "neither the city of Astoria nor any member of the council thereof shall in any manner be held liable for any damages resulting from a defective condition of any street, alley or highway thereof." Id p. 572. The court below held this clause void, because repugnant to section 10, art. 1, of the state constitution, which provides that "every man shall have remedy by due course of law for injury done him in person, property, or reputation," and in this view we concur. That it is within the power of a legislature to exempt a city from liability to persons receiving injuries on account of streets being defective or out of repair, is unquestioned. O'Harra v. City of Portland, 3 Or. 525. But in such case the injured party is not wholly without remedy. He may proceed personally against the officers to whom the charter delegates the duty of keeping the streets in repair, and from whose negligence the injury resulted. "It is settled law in this court," says Mr. Justice Finch, "that one who assumes the duties and is invested with the powers of a public officer is liable to an individual who sustains special damage by a neglect properly to perform such duties." Bennett v. Whitney, 94 N.Y. 302. Mr. Justice Swayne says: "The rule is well settled that where the law requires absolutely a ministerial act to be done by a public officer, and he neglects or refuses to do such act, he may be compelled to respond in damages to the extent of the injury arising from his conduct." Amy v. Supervisors, 11 Wall. 136, 20 L.Ed. 101. See, also, 1 Shear. & R.Neg. (5th Ed.) § 313; 1 Dill.Mun.Corp. (4th Ed.) p. 325, note; Rankin v. Buckman, 9 Or. 253; Balls v. Woodward (C.C.) 51 F. 646; Robinson v. Chamberlain, 34 N.Y. 389, 90 Am.Dec. 713; Hover v. Barkhoof, 44 N.Y. 113; Tearney v. Smith, 86 Ill. 391; Butler v. Ashworth, 102 Cal. 663, 36 P. 922; Nowell v. Wright, 3 Allen, 166, 80 Am.Dec. 62. A provision, therefore, of the city charter exempting the city from liability for damages resulting from defective streets is not violative of the constitutional provision referred to, because it does not wholly deny the injured party a remedy for the wrong suffered. The charter provision in question, however, goes further. It provides that neither the city nor any member of the council shall be liable, and, if valid, prevents a...

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48 cases
  • Smothers v. Gresham Transfer, Inc.
    • United States
    • Supreme Court of Oregon
    • May 10, 2001
    ...to deny a remedy for injury to absolute rights that existed when the Oregon Constitution was adopted in 1857. See Mattson v. Astoria, 39 Or. 577, 580, 65 P. 1066 (1901) (Article I, section 10, intended to preserve common-law right of Although this court has held that the remedy clause prese......
  • Mills v. Reynolds
    • United States
    • United States State Supreme Court of Wyoming
    • March 11, 1991
    ...reputation or property shall have justice administered without sale, denial or delay."6 I cite with approval Mattson v. City of Astoria, 39 Or. 577, 65 P. 1066, 1067 (1901), a case interpreting Or. Const. art. 1, § 10. The clause, which states in part that " 'every man shall have remedy by ......
  • Holden v. Pioneer Broadcasting Co.
    • United States
    • Supreme Court of Oregon
    • October 18, 1961
    ...perhaps abolish old and substitute new remedies * * * [citing cases], it can not deny a remedy entirely * * *.' Mattson v. City of Astoria, 39 Or. 577, 580, 65 P. 1066, 1067. '* * * [E]ver since the cases of Mattson v. Astoria [supra] * * * and Batdorff v. Oregon City, 53 Or. 402, (100 Pac.......
  • Certification of Questions of Law from U.S. Court of Appeals for Eighth Circuit, Pursuant to Provisions of SDCL 15-24A-1, Matter of, A-1
    • United States
    • Supreme Court of South Dakota
    • January 31, 1996
    ...perhaps abolish and substitute new remedies, it cannot deny a remedy entirely." Kyllo, 535 N.W.2d at 901 (citing Mattson v. City of Astoria, 39 Or. 577, 65 P. 1066, 1067 (1901)). There is nothing new about this doctrine as Kyllo traces its lineage back to McClain v. Williams, 10 S.D. 332, 7......
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