229 Pa. 289 | Pa. | 1910
Opinion by
Admittedly no statutory right of action here exists. If any liability whatever attaches to the county, it must be an implied liability arising out of the performance of a positive or absolute duty enjoined. Was the act of negligence here complained of committed in the performance of such positive or absolute duty? This must be our first inquiry. The negligence alleged was in connection with the repairing a public road within the county, undertaken by the prison board of the county in supposed pursuance of the provisions of the act of May 25, 1907. The act is entitled, “An Act authorizing the employment of male prisoners of the jails and work houses of this Commonwealth upon the public highways of the several counties, and regulating the same; and providing for the establishment of Prison Boards, the purchase of materials and tools, and the employment of deputies, at the expense of the proper county,” etc. The title indicates clearly the scope of the act, and the text shows an unmistakable purpose to intrust to the several counties a power in connection with the public roads which they never had before. Certainly prior to the act of June 26, 1895, the counties were without legislative warrant for any interference with the public roads within their respective limits. Such roads were distinctly township roads, and the whole responsibility for their repair and maintenance was imposed on the townships through which they passed, each township being made responsible for so much of any road as was within its own limits. The counties in their corporate capacity had nothing to do with these roads, and had no more right to enter upon them, or do any kind of work thereon, than the private individual would have. Such a thing as a county road was unknown until the act of June 26, 1895. This latter