223 P. 929 | Or. | 1924
Plaintiff brought this action against Marion County to recover damages alleged to have been occasioned by the wrongful acts of the agents and employees of the county. The complaint alleges that the plaintiff is the owner of a farm situate within the county and on the bank of the Willamette River, which river forms the boundary between Marion and Yamhill Counties; that along the west boundary of the farm is a county road leading to a bridge constructed by said counties across said river; that in January, 1923, there was an unusual freshet which caused the waters of the river to rise to an excessively high stage and to overflow and flood a large portion of plaintiff’s land' and to spread out over a wide basin of farm lands to an average depth of approximately eight feet; that a large quantity of logs, trees and stumps was gathered up and carried by the waters of the river and lodged against the piers of the bridge, resulting in danger of the bridge being washed away; that in order to protect the bridge against such danger the defendant county employed men and furnished them with boats and equipment to remove the logs, trees and stumps from the piers of the bridge; that in removing the same, instead of releasing them in the main channel of the river where they would float down without harm to plaintiff’s property, said employees, under the directions of the county, caused the same to be moved to and to be released at a place where they would float across plaintiff’s land; that as so released and discharged some of the logs, trees and stumps were carried by the water and floated against the buildings on plaintiff’s farm, causing said buildings to be floated away and, together with their contents, to be lost and destroyed, while a part of said logs, trees and stumps were deposited on plaintiff’s land, from whence they can be
Upon his appeal plaintiff contends that the demurrer should have been overruled because (1) under the allegations of the complaint the tort is waived and the action is in contract; (2) the obligation of the county to pay for the destruction and appropriation of the property is one created or implied by law, and therefore the case comes within the rule followed and applied in Theiler v. Tillamook County, 75 Or. 214 (146 Pac. 828); (3) the acts of the county amount to a taking of plaintiff’s property for a public use within the meaning of Article I, Section 18, of the Constitution of Oregon; while the defendant contends (a) that the complaint alleges a tort for which an action against the county will not lie, and therefore the case comes within the rule followed in Rapp v. Multnomah County, 77 Or. 607 (152 Pac. 243), and Clark v. Coos County, 82 Or. 402 (161 Pac. 702), and (b) that the facts alleged in the complaint do not constitute a taking within the meaning of the constitutional guaranty that private property shall not be taken for a public use without just compensation.
At common law an action would not lie against a county. Counties were not corporations, and they had no corporate capacity, either to sue or be sued. They were created for legislative and judicial purposes. They had no governing board, no power to levy taxes and no corporate fund out of which a judg
By statute in this state a county is a body politic and corporate and has the power to sue and be sued: § 3191, Or. L. But its rights are not to be determined by the law applicable to private corporations: Yamhill County v. Foster, 53 Or. 124 (99 Pac. 286). Counties are created for governmental purposes. Their duties are imposed upon them by law, and in the performance of their duties they act for and on behalf of the state. They are therefore civil or political agencies or instrumentalities of state government. In the absence of some constitutional or statutory provision imposing liability, an action will not lie against a county in this state. Therefore they are not liable to respond in damages for a tort arising from the negligent act or omission of their officers, agents or employees, unless made so by statute or some constitutional provision.
That a county is not liable for the wrongful acts or omissions of its officers, agents, servants or employees, is now the settled law of this state: Rapp v. Multnomah Counnty, supra; Clark v. Coos County, supra. In those cases the court construed Section 358, Or. L., which provides: “An action may be maintained against any of the organized counties of this state upon a contract made by such county in its corporate character, and within the scope of its authority, and not otherwise; * * ,” and held that no action can be maintained against a county for a tort. Plaintiff denies the applicability of these decisions to the facts alleged in the complaint and contends that in each of those cases the question was whether an
The constitutional guaranty that “ every man shall have remedy by due course of law for injury done him in his person, property or reputation” we think is self-executing and operates without the aid of any legislative act or provision. It is one of the most sacred and essential of all the constitutional guaranties and without it a free government cannot be maintained or individual liberty be preserved. Its beneficent effect is always in operation and the guaranty itself never slumbers. It is therefore at all times self-executing and requires no legislation to put it into operation. It has, however, no application to an action sounding in tort when brought against the state or one of the counties of the state. In strict law neither the state nor a county is capable of committing a tort or lawfully authorizing one to be committed. Counties, as well as the state, act through their public officials and duly authorized agents. The officers, agents, servants and employees of the state or a county, while in the discharge of their duties, can and sometimes do commit torts, but no lawful authorization or legal justification can be found for the commission of a tort by any such officer, agent, servant or employee. When a tort is thus committed, the person committing it is personally liable for the injury resulting therefrom. The wrongful act, however, is the act of the wrongdoer and not the act of the state or county in whose service the wrongdoer is then engaged. For the damages occasioned by the wrong thus committed it is within the power of the legislature to impute liability against the state or the county in whose service the wrongdoer is then engaged, or to exempt the state or county from such
Plaintiff seeks to avoid the effect of the statute and of the decisions above alluded to by contending that the plaintiff may waive the tort and sue a county upon an implied contract and that the allegations of the complaint bring him within the rule contended for. An action in contract is for the breach of a duty arising out of a contract, either express or implied, while an action in tort is for a breach of duty imposed by law. For a breach of duty where there is no contractual relation, either express or implied, only an action in tort can be maintained.
The gist of plaintiff’s complaint is that the county, in its removal of the logs, trees and stumps from the piers of its bridge, wrongfully discharged them where they would be carried by the water upon plaintiff’s land and come into contact with plaintiff’s buildings, resulting in the washing away and destruction of the buildings and the contents thereof, and in a part of the logs, trees and stumps being deposited upon his land. From this transaction no benefit could arise to the county and no promise upon its part to pay for the damages resulting therefrom can be implied. Excluding from the complaint the allegation of wrongful acts, the complaint states no cause of action, and by its inclusion no action on contract can be predicated. Notwithstanding this, plaintiff contends that the law itself imposes an obligation upon the county to pay for the damages consequent upon the wrongful acts of its agents and employees. This conclusion would be correct if the action was against a private party, but as the statute prohibits the bringing of an action against a county for these acts, the law imposes no enforceable obligation upon the county to pay for the damages resulting therefrom.
Plaintiff also contends that the case comes within the rules announced in Grant County v. Lake County, 17 Or. 453 (21 Pac. 447), and in State v. Baker
Plaintiff also relies upon the cases of Eastman v. Clackamas County, 32 Fed. 24, and Templeton v. Linn County, 22 Or. 313 (29 Pac. 795), 15 L. R. A. 730, as authorities tending to sustain the contention that this case falls within the constitutional guaranty (§ 10, Art. I, Const.) that “every man shall have remedy by due course of law for injury done him in his person, property or reputation.” The reasoning of the court in the first case supports plaintiff’s theory, but this reasoning has not been adopted as the law of this state and the conclusion there reached by Judge Deady was not necessary to the decision of that case as the accident there complained of happened before the amendment of what is now Section 358, Or. L., and as this amendment, as so held by Judge Deady, did not have the effect to operate retrospectively, the remedy given by the statute as it existed prior to the amendment had not been defeated. In the latter case, notwithstanding the dissenting opinion of Mr. Justice Lord, the majority opinion held to the contrary of what is contended for here. In that case Mr. Chief Justice Strahan, among other things, said: “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
Whatever doubt may have existed by reason of the decisions referred to, that doubt has now been settled by the later decisions of this court in the cases above cited. The allegations of the» complaint in the instant ease make the action one purely in tort. There is no allegation of a taking of the property for a public use or upon which it can be contended that plaintiff’s property was taken for a public use. “Public use implies a possession, occupation and enjoyment of the land by the public at large or by public agencies.” Cooley, Const. Lim. (7 ed.), p. 766. In this case, under the allegations of the complaint, the county made no appropriation of plaintiff’s land