41 Kan. 323 | Kan. | 1889
Opinion by
For the purposes of this case it will be presumed that the plaintiff has sustained the injuries complained of, and that his petition is in all respects sufficient to entitle him to recover, if the city is liable for this class of injuries. It has already been held in this state that counties are not liable for injuries of this kind. (Pfefferle v. Comm’rs of Lyon Co., 39 Kas. 432.) And this seems to be the doctrine universally held elsewhere. (Wehn v. Gage, 5 Neb. 494; Crowell v. Sonoma Co., 25 Cal. 313; Miller v. Lron Co., 29 Mo. 122; Waltham v. Kemper, 55 Ill. 346; Brabham v. Supervisors, 54 Miss. 363; Winbigler v. Los Angeles, 45 Cal. 36.) But it is urged that a different rule prevails in respect to cities and other public corporations, and that they are not such political divisions of a state as to entitle them to immunity from damages for injuries such as complained of. It is not claimed that there is any statute making it the duty of a city of the third class, to which class the defendant belongs, to keep and maintain comfortable and safe city prisons, and no
The distinction between an act done by a city in a public capacity and as a part of the political subdivisions of a state, and for an act done for its private advantage, and relating to things in which the state at large has no interest, is clearly defined and is well recognized. (Savings Society v. Philadelphia, 31 Pa. St. 185; Maximilian v. Mayor of New York, 62 N. Y. 160; Bailey v. Mayor of New York, 3 Hill, 531.)
In Hill v. Boston it was said:
“The examination of the authorities confirms us in the conclusion that a duty which is imposed upon an incorporated city, not by. the terms of its charter, nor for the profit of the corporation, pecuniarily or otherwise, but upon the city as the representative and agent of the public, and for the public benefit, as by a general law applicable to all cities and towns in the commonwealth, and a breach of which in the case of a town would give no right of private action, is a duty owing to the public alone, and a breach thereof,by a city, as by a town, is to be redressed by prosecutions in behalf of the public, and will not support an action by an individual, even if he sustains special damage thereby.”
This seems to be the current of authority everywhere, that a city while acting as a political part of the state in suppress
It is therefore recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.