Perez v. City of Honolulu

• Decision Date: 23 February 1927
• Docket Number: No. 1727.,1727.
• Citation: 29 Haw. 656
• Parties: NICHOLAS PEREZ v. THE CITY AND COUNTY OF HONOLULU.
• Court: Hawaii Supreme Court

29 Haw. 656

NICHOLAS PEREZ

v.THE CITY AND COUNTY OF HONOLULU.

No. 1727.

Supreme Court of the Territory of Hawai‘i.

Argued January 10, 1927.

Decided February 23, 1927.

OPINION TEXT STARTS HEREEXCEPTIONS FROM CIRCUIT COURT FIRST CIRCUIT. HON. C. F. PARSONS, JUDGE.

Syllabus by the Court

The City and County of Honolulu is not liable in damages for injuries to a person caused by the negligence of its agents and servants in operating a fire engine and a police patrol wagon.

H. E. Stafford (also on the briefs) for plaintiff.

G. D. Crozier, Deputy City and County Attorney ( Carrick H. Buck, Deputy City and County Attorney, on the brief), for defendant.

PERRY, C. J., BANKS, J., AND CIRCUIT JUDGE MASSEE IN PLACE OF PARSONS, J., DISQUALIFIED.

OPINION OF THE COURT BY BANKS, J.

This case comes here on exceptions. The plaintiff sued the defendant for damages resulting from a collision, on one of the streets of Honolulu, between a fire engine and a police patrol wagon, both being at the time under the operation and control of persons duly authorized to perform such duty. The complaint consists of three counts. In the first, the action is predicated on the negligence of those in charge of the fire engine; in the second, on the negligence of those in charge of the patrol wagon, and in the third, on the concurrent negligence of those in charge of the fire engine and those in charge of the patrol wagon. It appears from all the counts that at the time of the collision the fire engine was returning from a “fire call” and that the police patrol wagon was responding to a “fire call.” It also appears from all the counts that the plaintiff had been convicted of a misdemeanor and had been sentenced to a term of confinement in the county jail; while so confined he had been made a “trusty” at the police station and while preparation was being made by the police department to answer the “fire call” the officer who had the custody of the plaintiff ordered him to go upon the patrol wagon; he did go upon the patrol wagon and was on it when the collision occurred. The defendant demurred to the complaint on the ground that none of the counts sets forth sufficient facts to constitute a cause of action. The demurrer was sustained and an exception taken. The reason given by the court below for sustaining the demurrer was that it appeared from the complaint that at the time of the collision the defendant was in the exercise of governmental functions and therefore was not liable to the plaintiff for the injuries incurred by him.

The City and County of Honolulu is a municipal corporation. As such it derives its existence and powers from legislative enactments of the Territory (Ch. 118, R. L. 1925). Like all such corporations it is regarded by the law in two aspects-one as the delegate or political division of the territorial government and empowered to exercise certain functions, governmental in their nature, in which all people within the limits of the Territory are concerned; the other as a corporation empowered to administer, for its own benefit and the particular benefit of the people residing within its boundaries, the public affairs of the locality over which it is given jurisdiction. The things which it does under its authority as the delegate of the Territory are done in the exercise of purely governmental functions, that is, functions that are peculiarly appropriate to the territorial government itself. These functions belong to the central government because it is the organized representative of the entire citizenship of the Territory and is charged with the duty and responsibility of doing the things that are necessary for the common good. Some of these functions, however, for reasons of convenience, are performed through the agency of the City and County of Honolulu which, for such purposes, is a political division of the Territory, duly created by it and empowered to act on its behalf and in its stead.

It has too long been the law to be now questioned, that, in the absence of a permissive statute, a government charged with the duty and responsibility of regulating and controlling the social and political life of a people cannot be held liable for the malfeasance or misfeasance of officers and agents through whom its functions are exercised. This principle of law is founded on a wise and far-seeing public policy. It would subject governments to many hazards and embarrassments and possible destruction, if, without their consent, they could be sued and held liable for the acts of their officers and agents done and performed while in the exercise of political or governmental functions. This matter has so often been discussed by judicial and other law writers that further mention of it would be useless reiteration. It necessarily follows that since the government is immune from such liability the municipality through which the government acts is likewise immune. The law on this subject is nowhere more clearly stated than in McQuillin on Municipal Corporations, Vol. 6, Sec. 2623, p. 5398, where the author says: “The rule is firmly established in our law that where the municipal corporation is performing a duty imposed upon it as the agent of the state in the exercise of strictly governmental functions, there is no liability to private action on account of injuries resulting from the wrongful acts or negligence of its officers or agents thereunder, unless made liable by statute. In other words, unless a right of action is given by statute, municipal corporations may not be held civilly liable to individuals for ‘neglect to perform or negligence in performing’ duties which are governmental in their nature, and including generally all duties existent or imposed upon them by law solely for the public benefit. Such liability may, however, be imposed by statute or charter.”

A different principle, however, governs if the act done by the municipality is in the exercise of a corporate or ministerial, as distinguished from a governmental, power. In the former its liability is determinable by the same rules of law that are applicable to individuals and private corporations. McQuillin, speaking on this subject, says in volume 6 of his work on municipal corporations, section 2622, page 5395: “In so far as municipal corporations exercise powers not of a governmental character, ‘voluntarily assumed powers intended for the private advantage and benefit of the locality and its inhabitants, there seems to be no sufficient reason why they should be relieved from that liability to suit and measure of actual damage to which an individual or private corporation exercising the same powers for purposes essentially private would be liable;’ and it is held that while acting in its private capacity, a municipality is liable for negligence to the same extent as a private corporation or individual, and is liable to its employees to the same extent as other employers. Furthermore, for torts committed by its agents and servants in the performance of corporate or private duties the municipality is liable, whether the tortious act was done negligently or intentionally.”

It is contended by the plaintiff that section 1721, R. L. 1925, authorizes the maintenance of suits against the City and County of Honolulu for acts done in the performance of its governmental functions as well as those done in the performance of its administrative functions. The pertinent portion of the section is as follows: “Suits, actions and proceedings may likewise be brought against said city and county, at law or in equity, for the recovery of any money, property or thing belonging to any person, corporation, or the Territory, or for the enforcement of any rights of, or contracts with, or damages against, said city and county, or the heretofore existing county of Oahu, whether made or arising or accruing before or after April 30, 1907.” The plaintiff's construction of this section is erroneous. Its manifest purpose is to authorize suits against the city and county when a cause of action which is recognized by law arises. It does not purport to enlarge the liability of the municipality so as to include acts for which it would not be liable at common law.

We thus come to the question whether the acts complained of and which resulted in injury to the plaintiff were done in the performance of governmental or administrative functions. If the former, the demurrer was properly sustained. If the latter, it should have been overruled. The line of demarcation between these two functions is often shadowy and not always easily distinguished. Not so in the instant case. The persons operating the police patrol wagon were responding to a “fire call” and were thus in the exercise of a police duty. Those operating the fire engine were returning from a “fire call” and in the performance of a duty that appertains to a fire department.

The organization, employment and maintenance of an adequate police force is certainly a governmental function. The prevalence of crime in the City and County of Honolulu with all its demoralizing and hazardous results would be felt in every part of the islands. Visitors from the other islands, as well as the residents of the City and County of Honolulu, would be in constant danger of attack and injury. The apprehension of criminals escaping to Honolulu from other sections of the Territory would be greatly hindered and perhaps altogether defeated. This is no new question. It has been many times considered by text-writers and courts of last resort. It is the almost unanimous opinion of those who have written upon the subject that the maintenance of a police department is a governmental function. It would prolong this opinion beyond necessary limits to cite all the authorities which sustain this conclusion. It will suffice to quote some of the texts under...