Young v. City Council of Charleston

• Decision Date: 25 October 1883
• Citation: 20 S.C. 116
• Court: South Carolina Supreme Court
• Parties: YOUNG v. CITY COUNCIL OF CHARLESTON.

20 S.C. 116

YOUNG

v.CITY COUNCIL OF CHARLESTON.

Supreme Court of South Carolina.

Oct. 25th, 1883.

1. One injured in his person and property by a decay in a drain, which had been constructed across one of its streets by a municipal corporation charged by its charter with the duty of keeping its streets in proper repair, has no right of action for damages against such corporation, there being no statute authorizing it.

2. There is no distinction in this respect between municipal corporations and such other public bodies, or quasi-corporations, as are charged with like duties; there is no liability to civil action unless imposed by statute.

Before PRESSLEY, J., Charleston, February, 1880.

This was an action by Henry E. Young against the city council of Charleston, to recover damages for injuries sustained in his person and property, caused by a defect in a drain across one of the streets of the city of Charleston. Plaintiff was riding his horse on Sunday afternoon along a street or highway in the upper portion of the city, when the horse was thrown down, and horse and rider were both severely injured. The horse's fall was caused by a hidden hole in a trunk or drain, which had been put there some years before by the city council, and had decayed. The case is otherwise stated in the opinion.

Messrs. H. A. M. Smith and B. H. Rutledge, for appellant.

A municipal corporation is responsible for an injury to an individual for non-feasance or failure to keep the streets in repair. Quasi-corporations generally are not liable. 2 Dill. Mun. Corp., §§ 996-1000; 2 T. R. 667; 91 U. S. 552. Municipal corporation liable at common law. 2 Dill. §§ 980, 983;91 U. S. 552; 4 Law Rep. (App. Cas.) 263 (33 Moak R. 173.) There is nothing decided in the South Carolina cases to the contrary; but obiter dicta may be found in 2 Hill 571;2 Nott & McC. 537;12 Rich. 82;14 S. C. 290. Obiter is not controlling. 102 U. S. 307;15 S. C. 372. See Dill. Mun. Corp., § 957, note 1. Fowle v. Alexandria has been virtually overruled in 91 U. S. 552. It was the duty of the city to keep their streets in repair. 2 Bay 65. But the city is at least liable for an injury caused by the direct act of the agents of the corporation in making the street unsafe-for misfeasance. 2 Dill. Mun. Corp., § 1024; 122 Mass. 358.

Mr. G. D. Bryan, contra.

The opinion of the court was delivered by

MR. JUSTICE MCIVER.

This action was brought to recover damages for injuries sustained by the plaintiff, occasioned, as was alleged, by a defect in one of the streets of the city of Charleston. The defense was-First. That, in the absence of a statute making the municipal corporation liable to an action for damages so occasioned, such an action could not be maintained. Second. That the place where the damages were sustained was not one of the streets of the city which it was required to keep in repair. Third. That the plaintiff, being engaged at the time the injury was sustained in a violation of law, by taking a pleasure ride on Sunday, could not maintain the action.

The issues of law and fact were referred to a referee, who found all the issues in favor of the plaintiff, and fixed the damages at $990. To this report exceptions were filed, which need not be specifically stated here; and the Circuit judge, who heard the case upon the report and exceptions, not being satisfied with the sufficiency of the evidence as to the question, whether the place where the injury was sustained was such a public street as the defendant was bound to keep in repair, recommitted the report to the referee “for such further testimony as plaintiff may offer on said question.”

From this order both parties have appealed; but as we think the whole will be concluded by the proper solution of the question raised by the defendants' first ground of defense, it is unnecessary to state the various exceptions of the parties. That question is, whether a municipal corporation, charged by its charter with the duty of keeping in proper repair the streets or public highways within the corporate limits, is liable to a civil action for damages at the suit of an individual who has sustained an injury, either in person or property, by reason of a failure on the part of the corporation to perform such duty in the absence of a statute imposing such liability. This question has been the subject of no little conflict of discussion in the courts of this country; but we think it has been settled in this State adversely to the claim of the plaintiff. As far back as 1820, it was decided in the case of Young v. Commissioners, 2 Nott & McC. 537, that the board of commissioners of roads was not liable to such an action; and the authority of that case was subsequently recognized in White v. City Council, 2 Hill 575, decided in 1835, and again in McKenzie v. Chovin, 1 McMull. 222, decided in 1841. The same principle was recognized and re-affirmed in Coleman v. Chester, 14 S. C. 291, and in Black v. City of Columbia, 19 S. C. 412.

The true theory upon which these cases rest is that a municipal corporation is a mere governmental agency established for public purposes, and stands upon a very different footing from that of private corporations organized for private gain, or for the special benefit of the corporators. As characterized by Marshall, C. J., in Fowle v. Alexandria, 3 Pet. 398, it is “a legislative corporation, established as part of the government of the country;” and by Chancellor Harper, in White v. City Council, supra, as “the agent of the legislature for the purposes of government.” This distinction is fully recognized in Main v. Railroad Co., 12 Rich. 82. A municipal corporation, thus being a part of the government of the State, is not liable to a civil action by an individual for any damages which he may sustain by reason of its failure to perform any of the public duties imposed upon it, unless the legislature sees fit to provide by statute for such right of action; and as it is conceded that there is no statute giving any such right of action in this case, we do not think that the action can be maintained. Although we are satisfied that the law is thus firmly settled by the authorities in this State, yet, in deference to the earnest and able argument submitted in behalf of the plaintiff, we have been induced to examine the question in the light of the authorities elsewhere.

First, it is contended that the rule in this State rests ultimately upon the case of Young v. Commissioners, supra, in which the question was as to the liability of a board of commissioners of roads, which was at most only a quasi-corporation, and that the rule is different as to a municipal corporation proper. It is not to be denied that such a distinction has been recognized and established by many cases in other States. See 2 Dill. Mun. Corp., ch. XXIII., where the authorities are fully stated; but, as is said in section 785 of that valuable work, it is difficult to see the ground for such distinction; and we find it not only difficult, but absolutely impossible to perceive any good reason why a person who sustains an injury by reason of a defect in a highway just beyond the corporate limits of a city or town has no right of action against the public authorities charged with the duty of keeping such highway in repair, while such person would have a right of action if the injury he sustained had been received within the corporate limits of such city or town.

The duty of establishing and keeping in repair the public highways, whether within or without the corporate limits of a city or town, is a public duty, and whether such duty is imposed upon one set of public officers or another cannot make any difference in this respect. The character of the duty imposed in both cases is the same, the result to the injured party, of a failure to perform such duty, is the same, and we are unable to see why the liability should not be the same. The public, generally, as well as the individuals composing the public, have the same, and perhaps a greater interest in having the public highways outside as well as those within the limits of incorporated cities or towns kept in good repair; for if an injury should be sustained in a remote or unfrequented part of the public highway, the consequence might be much more serious than if the same injury were sustained within the corporate limits of a city or town where relief could readily be obtained. It will not do to say, as was...