Reardon v. St. Louis Cnty.

• Decision Date: 31 October 1865
• Parties: MARY REARDON, Plaintiff in Error, v. ST. LOUIS COUNTY, Defendant in Error.
• Court: Missouri Supreme Court

36 Mo. 555

MARY REARDON, Plaintiff in Error,

v.ST. LOUIS COUNTY, Defendant in Error.

Supreme Court of Missouri.

October Term, 1865.

Error to St. Louis Circuit Court.

Garesche, for plaintiff in error.

I. The petition is sufficient.

II. The plaintiff was entitled to recover. (§§ 3 & 4 of “Act concerning damages,” R. C. 1855, p. 648.)

III. By the laws applicable to St. Louis county, it is compelled to keep in repair the roads, bridges and highways of certain routes, inter alia, the Bellefontaine road, and, to carry out the purpose, is clothed with the power to borrow money, levy taxes and collect toll. (See act concerning roads and highways; “Volume of laws applicable to St. Louis county,” § 2, p. 379; § 5, p. 380; § 12, p. 381; § 2, p. 386, concerning tolls; § 2, p. 391, authorized to borrow money; § 1, p. 393, “to open and to keep in repair all public roads in St. Louis county;” § 11. p. 396, to open and keep in repair “may tax;” § 14, p. 396, may apply tolls to the keeping in repair roads and bridges, and opening new roads; § 15, p. 396, county court may employ such surveyors, engineers and agents necessary to open and keep in repair the roads of said county, and for the erection of bridges and other work on said roads; § 19, p. 396, may take other county funds for these purposes; § 21, must collect such rate of toll as shall be reasonable and just, to apply the same to keeping said roads in repair.)

IV. A defective bridge, or the want of a suitable barrier to a bridge or road, is a defect for which a company can be held responsible. (Randall v. Prop'rs Cheshire Turnpike Co., 6 N. H. 147; Townsend v. Pres't & Direc's of Susquehanna Turnpike Co., 6 John. 90: Wheeler v. Troy, 20 N. H. 78; Cogswell v. Livingston, 4 Cush. 308; Norris v. Litchfield, 35 N. H. 271; Wiley v. Portsmouth, 35 N. H. 314; Tolland v. 26 Conn., 583, and the cases therein cited; Hayden v. Attleboro, 7 Gray, Willington, Mass., 338; Palmer et als. v. Andover, 2 Cush 600.)

A public bridge is a public highway. (McPheeters v. Meramec Bridge Co., 28 Mo. 462.)

V. These and the preceding cases show that what is a defect is a question of fact to be found by the jury. (Merrill v. Inh. of Hamp., 26 Me. 234; Casseday v Stockbridge, 21 Vt. 397; Commonwealth v. Cent. Bridge Station, 12 Cush. 245.)

VI. Is the County of St. Louis, as a municipal or public corporation, exempt from the present action? Formerly, undoubtedly it would have been, through the blind devotion of the courts to the case of Russell v. Inh. of Devon, 6 Durn. & East, 671; but of late years the law of corporations has been greatly modified under the decisions of our courts. Corporations no longer shield themselves from actions of tort or trespass, or from their contracts not under seal. (City of St. Louis v. Hospital Ass'n, 15 Mo. 592.) A careful examination of the authorities which shield public corporations from actions, will be shown to rest, all of them, on a single decision, and that the case already quoted, of Russell v. Inhab. of Devon. Ld. Kenyon decided that case adversely to the plaintiff, lest the principle would give rise to an infinity of actions; certainly a very flimsy reason, but principally because the county is not incorporated; and if incorporated, as the judgment would be against the corporation and not the corporators, the judgment would be fruitless, as there would be no corporate fund out of which to satisfy it.

Why, then, should the doctrine of the Men of Devon be sustained in this State? Here our counties can be sued, (§ 6, p. 503, R. C. 1855,) and may levy taxes to defray their expenses. (§ 1, p. 1349, R. C. 1855.) The doctrine that counties, as parts of the State sovereignty, can commit no laches, is exploded in this State. (St. Charles Co. v. Powell, 22 Mo. 527; Callaway Co. v. Nolley, 31 Mo. 393,) and very properly, as the State itself has waived this exclusiveness, (§ 9, p. 1049, R. C. 1855,) and its constitution provides that it shall be sued. (§ 25, art. 3, p. 69, R. C. 1855.)

Our courts have sustained the decision of the Men of Devon, but have expressly saved the point involved in the present action. (Gurno v. City of St. Louis, 12 Mo. 424; Taylor v. City of St. Louis, 14 Mo. 24; Lambar v. City of St. Louis, 15 Mo. 613.)

Then that we should recover, we cite Bartlett v. Crozier, 17 Johnson, 439; City of Tallahassee v. Fortuna, 3 Flor. 25; Bacon v. City of Boston, 3 Cush. 174, which seem to be decided on common law principles and without reference to any statute; McCombs v. Akron, 15 Ohio, 479, re-affirmingRhodes v. Cleveland, 10 Ohio 159--in this last case, Russell v. Men of Devon is very correctly criticised. Ross v. Madison, 1 Ind. (Carter) 281; Wayne Co. Turnp. Co. v. Berry, 5 Ind. 286; Wheeler v. Troy, 20 N. H. 77--That the remedy exists at common law and independently of the statutes. The force of this decision, however, is impaired by that of Bell v. Town of Winchester, 32 N. H. 435, and in which the principle is questioned, though the case of Wheeler v. Troy, is neither quoted by counsel nor mentioned by the court, (Hutson v. City of New York, 5 Sanford, 296,) and in which the authorities are reviewed. Seagraves v. City of Alton, 13 Ills. 366; Browning v. City of Springfield, 17 Ills. 143--a very elaborate review of the cases pertinent to the question. In Commr's v. Martin, 4 Mich. 557, the principle of Russell v. Men of Devon is affirmed because the commissioners can assess only $250 for repairs; but where, as in the instance of St. Louis County, they have the power to tax for the necessary funds, the decision would not apply. (Conrad v. Village of Ithaca, 16 N. Y. 161, and cases cited in note a., containing a thorough review of the question. (Storrs v. City of Utica, 17 N. Y. 104; Mayor of Baltimore v. Marriott, 9 Md. 173--quoted also in Mayor of Baltimore v. Eschbach, 18 Md. 283; Hammer v. City of Covington, 3 Met., Ky., 499; Erie City v. Schwingle, 22 Penn., 384; Chicago City v. Robbins, 2 Black. U. S.) The case of Nebraska City v. Campbell (2 Black. U. S. 590,) is a case in point. Judge Nelson, in the decision, uses this language: “The charter vested in the city council the title to all of the streets within the corporate limits, and it is made their duty to construct and improve the same at the public expense; for this purpose and others, the council are authorized to levy a tax on all the taxable property within the city. This provision in respect to streets necessarily embraces all bridges within the limits of the city, and constituting a part of the street.” This doctrine goes far beyond the principle for which we contend.

VII. Another principle we maintain, and that is that there would be no question of the law if the defendants were a turnpike company. Why, then, should the county, thus allowed to enjoy all the powers and privileges of a turnpike corporation, not be held to the same accountability; and this power to build turnpike roads and collect tolls be treated as, in this respect, one of emolument, and for which the county is to be held responible just as any ordinary individual? (Detroit v. Correy, 9 Mich. 165.)

S. H. Gardner, for defendant in error.

The plaintiff's counsel has failed through the whole case to draw the proper distinction between the defendant “the County of St. Louis,” and the county court of St. Louis county, and between State roads and county roads. The Bellefontaine road mentioned in the petition is a State and not a county road. (See “An act about roads in St. Louis county,” Sess. Acts 1849, p. 591, §§ 2 & 3; also, Laws applicable to St. Louis county, p. 379, §§ 2 & 3.)

The county, as a corporation, has no control over the State roads. The county court in directing the expenditure of the road fund, is exercising its statutory jurisdiction over roads as a branch of the State judiciary. In exercising that jurisdiction, whether it does what it ought not to do, or fails to do what it ought to do, the county can in no event be made liable, any more than it can for the acts of omission of the Circuit Court. The Legislature has seen fit to give in charge of the county courts all matters relating to guardians, minors, lunatics, idiots, insane persons, apprentices, roads, &c., and counties are not liable in damages for the action of the court in exercising its discretion in any of these matters. This doctrine was fully established in the case of Miller v. Iron County, 29 Mo. 122. The opinion of the court in that case will apply with equal force to the case at bar: where a duty judicial in its nature is imposed upon a public officer or a municipal corporation, a private action will not lie for delinquency or misconduct. (Wilson v. the Mayor of New York, 1 Den. 595-600.)

In regard to the pleadings and liabilities of officers, see Bartlett v. Crozier, 17 John, 438.

A municipal corporation is not liable for the malfeasance or non-feasance of one of its officers in respect to a duty specifically imposed by statute on the officer; otherwise if the duty is one imposed absolutely by statute on the corporation as such. (Martin v. Mayor, &c., of Brooklyn, 1 Hill. N. Y., 545-551.)

The counsel for plaintiff, in the case at bar, has failed to observe that no duty whatever is imposed upon the county--the corporation; but the duty is imposed upon, and the discretion is confided to the county court, as it might have been to the Circuit Court or Common Pleas.

The plaintiff's counsel has failed to note the distinction between a private corporation, exercising its corporate functions for the benefit of its members, and public corporations, instituted for the purpose of government. (2 Hill, S. C., 571; Am. Lea. Cs. 469; 9 Mass. 237.)

The case of Russell et al. v. the Men of Devon, 2 Durn. & East, 308, continues to be good authority to this day; and although the principles established in that case have in some instances been criticised, they have never yet been overruled by any respectable authority.WAGNER, Judge, delivered the opinion of ...