Day J.
l. municipal concrofoyer ! uiíitylór’persona injury. It is conceded that the question sought tobe raised by the demurrer, and the only one which either party desires to have determined is: “Can an incorporated town, organized under the general incorporation act, be held liable to a citizen for an injury SUS£a}ne(j py passing along a public highway in said town, which was occasioned by an excavation made in such highway by the supervisor of the highway district in which said town is located, while such supervisor was engaged in repairing the highway?”
*464It is claimed by the appellee that road districts include incorporated towns; that road supervisors are voted for by the inhabitants of such towns; that road taxes are levied upon the property included in such towns and paid over to the road supervisor, whose duty it is to expend the tax upon the highways in his district, including streets in an incorporated town, and, as a consequence, it is insisted that for any defect in the street occasioned by the road supervisor, while engaged in repairing the street, the incorporated town cannot be held responsible.
Section 969 of the Code provides that the township trustees shall divide their respective townships into such number of highway districts as they may deem necessary for the public good. This provision is broad enough to confer upon the township trustees unrestricted control over the establishment of highway districts in their townships; yet in Marks v. The County of Woodbury, 47 Iowa, 452" court="Iowa" date_filed="1877-12-13" href="https://app.midpage.ai/document/marks-v-county-of-woodbury-7097672?utm_source=webapp" opinion_id="7097672">47 Iowa, 452, it was held that the power of township trustees to divide their townships into road districts extends only to so much of the township as is not embraced in a city. The decision was based upon Sec. 527 of the Code, which provides that the city council shall have the care and control of all public highways and streets within the city, and shall cause them to be kept in repair. It was held that this necessarily excludes the care and control of any other officers. Chap. 10, Tit. 4 of the Code, confers certain general powers upon both cities and incorporated towns. Among these powers, Sec. 465' provides: “They shall have power to provide for the grading and repairs of any street, avenue, or alley, and the construction of sewers, and shall defray the expenses of the same out of the general funds of such city or town.” Sec. 5, Chap. 51, Laws of 1874, repeals so much of this section as requires the expense of the grading of alleys to be paid out of the general funds. See Miller’s Code, page 135.
Sec. 465 of the Code confers upon an incorporated town power to provide for the grading, and repairs of any street. *465Power to thus grade and repair must of necessity be .accompanied with control over the streets, for without such control the power could not be exercised. Power to grade and repair would be futile, if a grade made by the town authorities one week could be destroyed by the road supervisor, in the disr cretionary discharge of his duties, the next week. The same reasoning which, under Sec. 527 of the Code, inhibits the township trustees from including a city in a road district, inhibits them, under Sec. 465, from including an incorporated town in such road district. The inconvenience and conflicts which would arise from allowing two independent bodies to assume charge of the, grading and repairing of streets in a town, are so apparent that they need not be mentioned. In our opinion, Section 465 of the Code confers upon the defendant control of its streets, and it cannot escape liability upon •the ground that its streets were put in an unsafe condition by the road supervisor,
Eeversed. ,.