Templeton v. Linn County

• Decision Date: 30 April 1892
• Citation: 29 P. 795,22 Or. 313
• Parties: TEMPLETON v. LINN COUNTY.
• Court: Oregon Supreme Court

29 P. 795

22 Or. 313

TEMPLETON v. LINN COUNTY.

Supreme Court of Oregon

April 30, 1892

Appeal from circuit court, Linn county; R.P. BOISE, Judge.

Action by Iva Templeton against Linn county. Judgment for defendant. Plaintiff appeals. Affirmed.

M.C George and Cake & Cake, for appellant.

G.G Bingham, Dist. Atty., J.K. Weatherford, and D.R.N. Blackburn for respondent.

STRAHAN, C.J.

The proposition that at common law a county was not liable for an injury resulting from a defect in one of its highways or roads is established by an array of authorities which cannot be questioned. White v. Commissioners, 90 N.C. 437; Dosdall v. County of Olmsted, 30 Minn. 96, 14 N.W 458; Wood v. Tipton Co., 7 Baxt. 112; Brabham v Supervisors, 54 Miss. 363; White v. County of Bond, 58 Ill. 297; Downing v. Mason Co., 87 Ky. 208, 8 S.W.Rep. 264; Reardon v. St. Louis Co., 36 Mo. 555; Swineford v. Franklin Co., 73 Mo. 279; Clark v. Adair, 79 Mo. 536; Granger v. Pulaski Co., 26 Ark. 37; Barnett v. Contra Costa Co., 67 Cal. 78, 7 P. 177; Scales v. Chattahoochee Co., 41 Ga. 225; Hedges v. Madison Co., 1 Gilman, 567; Marion Co. v. Riggs, 24 Kan. 255; Watkins v. County Court, 30 W.Va. 657, 5 S.E. 654; Manuel v. Commissioners, 98 N.C. 9, 3 S.E. 829; Fry v. County of Albemarle, 86 Va. 195, 9 S.E. 1004; Gilman v. Contra Costa Co., 68 Amer.Dec. 295; Woods v. Colfax Co., 10 Neb. 552, 7 N.W. 269; Monroe Co. v. Flint, (Ga.) 6 S.E.Rep. 173; Hamilton Co. v. Mighels, 7 Ohio St. 109; Freeholders v. Strader, 18 N.J.Law, 108; Cooley v. Freeholders, 27 N.J.Law, 415; Pray v. Jersey City, 32 N.J.Law, 394; Young v. Commissioners, 2 Nott & McC. 537; Ensign v. Supervisors, 25 Hun, 20; Bartlett v. Crozier, 8 Amer.Dec. 428; Cooley, Const. Lim. (3d Ed.) 247; Id., (6th Ed.) 301; Dill. Mun. Corp. §§ 996, 997, 999; Barbour Co. v. Horn, 48 Ala. 566; Covington Co. v. Kinney, 45 Ala. 176; Rankin v. Buckman, 9 Or. 256; Sheridan v. Salem, 14 Or. 328, 12 P. 925; Ford v. Umatilla Co., 15 Or. 318, 16 P. 33; Grant Co. v. Lake Co., 17 Or. 459, 21 P. 447; Treadwell v. Hancock Co., 11 Ohio St. 190; Morey v. Newfane, 8 Barb. 645; Lorillard v. Monroe, 11 N.Y. 392; Smith v. Board, 46 F. 340; Barnes v. Columbia, 91 U.S. 552; Conrad v. Ithaca, 16 N.Y. 158. Nor did the appellant seek to controvert this proposition upon the trial in this court. Her only contention is that, at and before the adoption of the constitution of this state there was a statute in force in the then territory, enacted by the territorial legislature, creating a liability against any county where an injury might happen to any person through a defective road or bridge, where such road or bridge was under the control of the county court or board of county commissioners of such county; and that by section 10, art. 1, of the constitution, the legislature of the state was disabled from repealing said territorial statute without enacting another, which would be a substantial equivalent for the law as it then stood on that subject. The provision of the constitution relied upon is as follows: "No court shall be secret, but justice shall be administered openly and without purchase, completely and without delay, and every man shall have a remedy by due course of law, for injury done him in person, property, or reputation." Section 347 of the Code, as originally enacted, is not materially variant from the law as it stood prior to the adoption of the constitution, and is as follows: "An action may be maintained against a county or other of the public corporations mentioned or described in section 346, either upon a contract made by such county or other public corporation in its corporate character, and within the scope of its authority, or for an injury to the rights of the plaintiff, arising from some act or omission of such county or other public corporation." In 1887 this section was amended by omitting the words, "or for an injury to the rights of the plaintiff, arising from some act or omission of such county or other public corporation," and by the addition of the words, "and not otherwise," after the word "authority," in said section. The liability created against a county by this statute, as it existed prior to the amendment in 1887, was recognized and enforced in McCalla v. Multnomah Co., 3 Or. 424, and the rule there stated continued to be recognized until the amendment. This is the first case arising under the statute as amended that has reached this court. There being no common-law liability, unless the statute has created a liability there is none; and, the statute having been repealed, there is none under the statute, if it were competent for the legislature to repeal it. It must be conceded that the right to repeal existed, unless the legislature was prohibited or restrained from repealing it by article 1, § 10, of the constitution.

The words, "and every man shall have a remedy by due course of law for injury done him in person, property, or reputation," are claimed to operate as a guaranty in favor of all persons who might be injured by a county's neglect; that the legislature should never so change the statute as to destroy the liability of such county. In other words, the constitution found a certain liability created by statute resting upon the several counties, and tied the hands of the legislature, so that such liability should endure as long as the constitution shall remain in force. As a proposition of constitutional law, this contention seems startling, and, although the constitutions of many of the states of this Union contain substantially the same provision as section 10, supra, no judicial authority was cited upon the argument in support of it, and I think it may be safely assumed that none exists. The repeal of the statute creating the liability of a county for negligence is not the only way that liability might be destroyed. It is within the power of the legislature to repeal the act creating a county, and with such repeal a liability would be as effectually canceled and destroyed as if the county had never existed. Says the supreme court of the United States in Laramie Co. v Albany Co., 92 U.S. 307, "Corporations of this kind are properly denominated 'public corporations,' for the reason they are parts of the machinery employed in carrying on the affairs of the state; and it is well-settled law that the charters under which such corporations are created may be changed, modified, or repealed, as the exigencies of the public welfare may demand." And the plenary power of the legislature over such corporations was fully recognized by this court in Morrow Co. v. Hendryx, 14 Or. 397, 12 P. 806. But it was argued upon the trial that the act making counties liable for the neglect of those who may be intrusted with the administration of their affairs for the time being was in the nature of a remedy, and for that reason it was placed beyond the power of the legislature to repeal it. A remedy for what? If this statute creates a remedy, where is the law that creates the liability? We have seen that it is not the common law, and there was no statute on the subject. So that, to maintain the doctrine claimed by the appellant, it would have to be held that this statute performed the double office of creating the liability against the county, and also of furnishing a remedy whereby the liability may be enforced, and then by the same words of the act. A process of reasoning which leads to such consequences must be fallacious. In this case the statute making the county liable was repealed before the alleged injury. At the time of the repeal the plaintiff had no cause of action against Linn county, and her sole cause of complaint is that the repeal of the statute before the injury cut off a cause of action which she otherwise would have had against the county. If the plaintiff's rights had accrued before the repeal of the statute, there would have been more reason for her contention, but it would not have been well founded in that case; but, when the repeal of the statute did not in any manner affect her at the time, it is difficult to see how her misfortunes, happening after its repeal, can furnish her any grounds of complaint. In a legal sense, there can be no liability for negligence where the defendant owed the plaintiff no duty, and, inasmuch as the duty which a county owed was created by statute only, its repeal destroyed the only foundation upon which an action for negligence could rest. But it was insisted upon the argument that section 10, supra, was in the nature of a guaranty to the citizens of the state that some rights were secured to them which are placed beyond the power of legislation, and that it was the duty of the court to define those rights. The time allowed for the consideration of this subject is too brief to allow an exhaustive examination of it; besides, it is never safe for a court to undertake to decide any more than the exact question before it. In addition to this, on the principle of "inclusion and exclusion," the court will be better able to determine the effect of this provision of the constitution in each particular case as it shall arise. But I think it may be safely said that, without the existence of a right, a party is entitled to no remedy, and the constitution does not purport to guaranty any. But the rights of a party may be violated, and for such violation such party must have a remedy. What are those rights? Vested rights undoubtedly. Says Judge Cooley: "But a vested right of action is 'property' in the same sense in which tangible things are property, and is equally protected against arbitrary interference. When it springs from contract or from the principles of the common law, it is not competent for the legislature to take it away; and every man is entitled to a certain remedy in...