4 Mich. 557 | Mich. | 1857
-By the Court,
In England the liability to beep highways in repair, is of common -right incumbent in general upon the parishes in which they respectively lie, but in some cases; it attaches (by prescription) to particular townships or other divisions of parishes, and occasionally to private individuals or Corporations, bound ratione tmurcB, or in right of their estates or franchises, to repair some particular highway. The case of bridges is differently provided for. The expense of maintaining these is incumbent, not on the parishes, but on the counties at large in which the bridges are situate. (3 St&ph. Com., 257; 1 Buss, on Or., 352, 388.) The civil divisions of England into counties, is of remote and undefined antiquity. So also is the division originally ecclesiastical, but now partly civil, into parishes. And the obligation of the former to repair bridges, and of the latter to repair highways, is founded upon prescription, which presupposes a legal origin beyond the memory of man, and is absolute and unqualified. Any
In this country, the construction of roads and bridges is, for the most part, accomplished through our township organizations : the counties contributing towards the construction of bridge?, in cases where the expenses would be too onerous to be wholly borne by the townships in which they are situated. Towns, with us, are bodies politic and corporate, capable of sueing and being sued (B. 8., p. 84, 85); but they have no corporate fund, out of which a judgment may be satisfied, and there is no statute, that I am aware of, which provides any mode for obtaining satisfaction of a judgment,
The existence of any such obligation upon towns in the State of New York was denied in Morey vs. The Town of Newfane (8 Barb. S. C. R., 645), and in Hitchcock vs. The Village of Plattsburgh (15 Ib., 427), and the doctrine of these cases was recognized and approved by the Court of Appeals, in a decision of the latter case on appeal, which is not yet reported, but which I have had an opportunity of examining. These decisions wejregard as settling the law on this subject in the State of New York, and they ought to have great weight in determining it with us, because our statutes respecting townships are almost identical with theirs.
In all the New England States, towns have, from an early period, been made liable by statute, in certain cases, to civil actions, for injuries sustained by individuals on account of the non-repair of highways and bridges ; but the uniform course of decisions there, has been, that no such liability existed independently of express statutory enactment: Mower vs. Inhabitants of Leicester (9 Mass. 247); Holman vs. Inhab. Townsend (13 Metc., 297); Harwood vs. Lowell (4 Cush., 310); Bailey vs. Scarborough (6 Ib., 141); Sawyer vs. Northfield (7 Cush., 494); Ried vs. Belfast (20 Maine, 246); Chedsey vs. Canton (17 Conn., 474; 1 Verm., 353; 2 N. H., 105; and Hill vs. Richmond (2 Wood. & M., 337), where Judge Woodbury says, such is the law in Rhode Island. A contrary doctrine prevails in Pensylvania. (Dean vs. Milford Township, 5
There is a long course of decisions tending to establish the doctrine, that a municipal or other corporate body, vested with powers and enjoying franchises and privileges for its own benefit, is liable to' a civil action for any injury resulting either from its misfeasance, or that of its officers, or for the neglect of any duty which its charter or the law imposes. (Henley vs. The Mayor of Linn Regis., 5 Bing., 91.; S. C., 3 Barn. & Ad., 77, and 1 Bing. N. C., 222; Riddle vs. Proprietors of Merrimack River, 7 Mass., 169; Hudson vs. Mayor of New York, 5 Sandf., 289; Smoot vs. Mayor of Wetumpka, 24 Ala., 112.) And it is the extent to which some of those cases have gone, especially in New York, in ■subjecting municipal Corporations to such liability, which has created the only doubt I have entertained in regard to the present case.
But the cases which have gone furthest in this direction, distinctly assert, that no such liability exists on the part of those minor political organizations, or quasi Corporations, such as towns and counties, whose corporate powers' and functions are conferred without their solicitation for the benefit, not of themselves, but of the public at large. In
If, as we think, towns ai'e not by the common law liable in. actions directly against them for damages sustained in consequence of the non-repair of bridges and highways, we are clearly of opinion that they eannot, under Chapter 119, of the Revised Statutes, be subjected to any such liability through the means of an action like the present, against the Commissioner's of Highways. That chapter provides, that in certain cases, actions may be brought by and against certain county and township officers therein mentioned, and among them the Commissioners of Highways of the several townships, by their name of office, without naming them individually. They.are authorized to sue in that capácity, “upon any contract lawfully made with them, or their predecessors, in their official character, and to enforce any liability or any duty enjoined by law to such officers, or to the body which they represent, or to recover damages for any injuries done to the property or rights of such officers, or of- the bodies represented by them.” This language would bear criticism on account of its want of perspicuity; yet I think the meaning is discernible. Section four, which assumes rather than declares that actions may be brought against such officers, by the same names in which they are authorized to sue, does not prescribe what actions may be brought against them, but section five sheds some light upon the intention of the Legislature, upon this subject. It provides that when any contract shall have been entered into, or any liability incurred, by or in behalf of any county or township, by any officer thereof, withm the scope of his emthority, the same remedies
Reading these provisions in connection with the seventh section already referred to, which provides, that if any judgment shall be recovered against any township officers, in an action prosecuted by or against them in their name of office, no execution shall issue thereon, but the same shall be levied and collected as other township charges, it is quite clear that it was not the intention of the statute to subject the townships to any new liability, but merely so far as it relates to claims against townships, to remove doubts, difficulties, and inconveniences, which before existed in their enforcement. We think it does not authorize any action to be brought against township officers by their name of office, except for acts, done, or upon contracts made by them, while acting within the scope of their official duty and authority. The present action is brought to recover damages caused by alleged neglect of official duty by the defendants, for which, if liable at all, they are liable individually, and not officially, as a quasi Corporation. See per Tallmadge, Senator, in Flower vs. Allen (5 Cow., 670); 4 Hill 136; 3 Wend., 193.
This view of the statute will be found to derive some confirmation, if confirmation it needed, from the opinions-delivered in Makinnon vs. Penson (18 Eng. L. and Eq., 509); (S. C. 25,) Ib., 457; which involved the construction of an English statute, providing that counties might sue and be sued in the name of the County Surveyor.
For these reasons, we are of the opinion that the judgment below ought to be reversed, with costs.