Vail v. Town of Amenia
| Decision Date | 13 August 1894 |
| Citation | 59 N.W. 1092,4 N.D. 239 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; McConnell, J.
Action by William M. Vail against the town of Amenia to recover damages for personal injuries. From a judgment for defendant plaintiff appeals.
Affirmed.
Benton & Amidon, for appellant.
The township was by express provision of law bound to maintain and repair the bridges upon its public highways and was vested with power to raise money for that purpose. The power to borrow money is as adequate for the purpose as the power to levy taxes. Hover v. Barkhoof, 44 N.Y. 113.
Towns and counties have been held to be mere political divisions of the state. Lorillard v. Monroe, 11 N.Y. 392; West v. Brockport, 16 N.Y. 161; People v. Town Auditors, 74 N.Y. 310; People v. Town Auditors, 75 N.Y. 316; Rochester v. Town of Rush, 80 N.Y. 302; 1 Thompson Neg. 621, and not liable for negligence or in actions for tort. Hill v. Boston, 122 Mass. 349; Hover v. Barkhoof, 44 N.Y. 113; 2 Thompson Neg. 819; Russell v. Devon, 2 T. R. 667; Bartlett v Crozier, 17 Johns. 439; Riddle v. The Proprietors, 7 Mass. 169; Mower v. Lester, 9 Mass. 247; and a distinction has been drawn between townships and counties on the one hand, and cities upon the other, in that, private advantages have been conferred upon cities by special charter upon the agreement to perform certain duties. But the leading courts of this country have refused to recognize the distinction. Hill v. Boston, 122 Mass 344; Prey v. Mayor, 32 N.J.L. 394; Tranter v Sacramento, 61 Cal. 271; Detroit v. Blackeby, 21 Mich. 84, holding cities exempt from liability as well as counties and towns.
On the other hand the following states having no statutes expressly imposing the liability, deny the distinction, and hold counties and towns liable the same as cities. Dean v. New Millford, 5 Watts & S. 545; Raphs v. Monroe, 68 Pa. 404; Newlin v. Davis, 77 Pa. 317; Mahoney v. Scholly, 84 Pa. 136; Rigony v. Schuykill Co., 103 Pa. 202; Hover v. Barkhoof, 44 N.Y. 113; Calvert Co. v. Gibson, 36 Md. 229; Anne Arundel Co. v. Duckett, 20 Md. 468; Hartford v. Hamilton Co., 60 Md. 340; House v. Commissioners, 60 Ind. 580; Knox Co. v. Montgomery, 109 Ind. 69; Abbett v. Johnson Co., 114 Ind. 61, 9 N.E. 590; Wilson v. Jefferson Co., 13 Ia. 181; Huston v. Iowa Co., 43 Ia. 456; Yordy v. Marshall Co., 45 N.W. 1042. The Supreme Court of North Dakota, has already held cities liable for negligence. Ludlow v. City of Fargo, 3 N.D. 485, 57 N.W. 506, and upon the authority of the courts of Massachusetts, New York and Pennsylvania holding that there is no distinction between cities and townships as to the nature of the duties performed or the liability for negligence in their performance, must hold townships subject to the same liabilities as cities.
Seth Newman, for respondent.
The duties imposed upon the supervisors of highways are purely statutory and in the performance of such duties none of these officers are under the control or direction of the town. Their duties are in the nature of public or governmental functions imposed for convenience upon the town officers. These officers are the agents of the town only in the sense, that the powers of the town can only be exercised through them, because the public can only act through its officers, and not in the sense that the town is liable for their neglect. Dosdal v. County Commissioners, 14 N.W. 458, 30 Minn. 96; Reardon v. St. Louis Co., 36 Mo. 562; Hoffman v. San Joaquine Co., 21 Cal. 527; Union Tp. v. Berryman, 28 N.E. 774. Highway officers under statutes similar to our own, have been held not to be the agents of the town, so as to subject the town to liability for their acts. Waltham v. Kemper, 55 Ill. 346; Russell v. Steuben, 57 Ill. 35; Morey v. Town of Newfane, 8 Barb. 645; Town v. Plank Road Co., 22 Barb. 645; Town v. Loucks, 21 Barb. 578; Town v. Plank Road Co., 27 Barb. 543; Gailor v. Herrick, 42 Barb. 79; People v. Town Auditors, 75 N.Y. 316. The corporate authority of towns under our statute is in the electors alone and not in the supervisors. Kankakee v. Kankakee R. R. Co., 115 Ill. 88. The statutes imposes duty of keeping highway in repair upon the town officers designated therein, it imposes no duty upon the town. Haynes v. City of Lockport, 50 N.Y. 236. Townships are not liable except by express statutory enactment specifically imposing the liability. Hill v. Boston, 23 Am. Rep. 332; Bartlett v. Crozier, 8 Am. Dec. 428; Winbigler v. Los Angelos, 45 Cal. 427; Crowell v. Sonoma Co., 25 Cal. 313; Hoffman v. San Joaquin Co., 21 Cal. 427; Barnett v. Contra Costa Co., 67 Cal. 77; Downing v. Mason Co., 12 Am. St. Rep. 473; Browning v. Springfield, 63 Am. Dec. 345; Wood v. Tipton Co., 32 Am. Rep. 561; White v. Commissioners, 47 Am. Rep. 535; City of Detroit v. Blakeby, 4 Am. Rep. 450; McCutcheon v. Homer, 38 Am. Rep. 212; Clark v. Lincoln Co., 20 P. 276; Kincaid v. Hardin, 36 Am. Rep. 276; Cooley's Const. Lim. 247; Dodsall v. County, 30 Minn. 96; Union Civil Tp. v. Berryman, 28 N.E. 774; Towle v. Com. Council, 3 Peters 403; Hamilton Co. v. Mighels, 7 Ohio St. 110; Weet v. Trustees, 16 N.Y. 161; Askew v. Hale Co., 54 Ala. 639; Weighton v. Washington, 1 Black 39; Hedges v. Hamilton, 6 Ill. 567; Sherburne v. Yuba Co., 21 Cal. 113; Reed v. Belfast, 20 Me. 246; Bigelow v. Randolph, 14 Gray 541; Mower v. Leicester, 9 Mass. 247; Commissioners v. Martin, 4 Mich. 557; Larkin v. Saginaw, 11 Mich. 88; Brabham v. Hands Co., 28 Am. Rep. 382; Sandford v. Franklin Co., 6 Mo.App. 39; Hyde v. Town, 27 Vt. 443; Makinnon v. Pierson, 25 Eng. Law and Eq. 457; Governor v. Justices, 19 Ga. 97; White v. County, 58 Ill. 297; Eikenberg v. Town, 22 Kan. 556; Town v. Kemper, 55 Ill. 346; Russell v. Steuben, 57 Ill. 35; Reardon v. St. Louis Co., 36 Mo. 555; Ball v. Winchester, 32 N.H. 435; Eastman v. Meredith, 36 N.H. 284; Sussex v. Straden, 18 N.J.L. 108; Treadwell v. Commissioners, 11 Ohio St. 183; Conrad v. Ithaca, 16 N.Y. 158; Lohn v. Henry Co., 26 Ia. 264; Altnow v. Town, 30 Minn. 186; Garlinghouse v. Jacobs, 29 N.Y. 297.
William M. Vail, the appellant herein, sued the town of Amenia for damages for personal injuries. The complaint charges the corporate capacity of the respondent, and alleges the existence of a certain highway within said town, which was laid out, established, and maintained by respondent, and which was a graded and much used highway; alleges the existence of a bridge in said highway as a part thereof, which said bridge was constructed by respondent, and was under its exclusive charge and control; that said bridge was suffered and allowed to become unsafe and dangerous, and that its condition was known to respondent for months prior to the injury to appellant; that appellant was passing along and over said highway with a traction engine, and said bridge, by reason of its dangerous and rotten condition, broke while appellant was so crossing it, and without fault or negligence on his part, and appellant and the engine were thrown into the coulce below, and the injury received upon which the action is based.
A general demurrer to the complaint was sustained, and the appeal involves no other question. The learned counsel for the appellant admit that the decision of this appeal must turn upon the answers to be given to two questions, which are thus stated by counsel: (1) "Was it the legal duty of the township of Amenia to repair bridges in its public highways, and had it power, under the statute, to raise money, by taxation or otherwise, for that purpose?" (2) "There being no statute in this state expressly making civil townships liable in this class of actions, has the plaintiff any right of action against the defendant?"
It is apparent that an affirmative answer cannot be given to the second question unless the first be also answered in the affirmative, but the first may be answered in the affirmative, and the second still receive a negative reply. In the view we take of this case, it will not be expedient for us at this time to discuss the first question. Its answer involves the construction of numerous statutory provisions which are not clear. It will prove more satisfactory to avoid such construction until it becomes necessary to the decision of a case.
It had long been held that at common law, as against quasi municipal corporations, such as counties, towns, and school districts, there existed no liability in cases of this character. Brown v. Fairhaven, 47 Vt. 386; Reardon v. St. Louis Co., 36 Mo. 555; Com. v. City of Newburyport, 103 Mass. 129; Leoni v. Taylor, 20 Mich. 148; Hollenbeck v. Winnebago Co., 95 Ill. 148; Union Civil Tp. v. Berryman, 3 Ind.App 344, 28 N.E. 774; Fowle v. Common Council, 28 U.S. 398, 3 Peters 398, 7 L.Ed. 719; Reed v. Belfast, 20 Me. 246; Eikenberry v. Bazaar Tp., 22 Kan. 556; Treadwell v. County Commissioners, 11 Ohio St. 183; Garlinghouse v. Jacobs, 29 N.Y. 297; Templeton v. Linn Co., 22 Ore. 313, 29 P. 795; Clark v. Adair Co., 79 Mo. 536; Watkins v. County Court, 30 W.Va. 657, 5 S.E. 654; Fry v. Albemarle Co., 86 Va. 195, 9 S.E. 1004; Granger v. Pulaski Co., 26 Ark. 37. It is also equally well established that, as against municipal corporations proper, the common law raised an implied obligation which made the municipality liable in this class of cases. See Ludlow v. City of Fargo, 3 N.D. 485, 57 N.W. 506, and cases there cited. The difficulty and doubt in which the case is involved arise from the fact that this distinction has not always been recognized, and that courts and text writers in recent years have endeavored to break away from these decisions, on the ground that, the reason for the distinction having ceased, the distinction itself should cease. It...
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