— This is аn action against the defendant county and its officers for damages for personal injuries alleged to have been sustained by reason of the negligence of such officers, the other defendants being sureties on official bonds of officers. The gist of the action, as statеd in the complaint, is that plaintiff’s
The defendants interposed demurrers to the complaint upon various grounds. The demurrers werе sustained on the ground that the defendant county, in the absence of a statute making it liable, was not liable in damages for the negligence оf its officers, and that the officers were not liable on the ground that in the building- and maintenance of public highways they were in the performance of official duties and exercising governmental functions.
From the judgment dismissing plaintiff’s complaint, he appeals.
Since the case wеnt off on the sole question of the nonliability of the county and its officers for negligence in performing a governmental function, to wit, in building and maintaining a public highway, we will confine our decision to that point.
The plaintiff concedes, as’ indeed he must, that by the great majority of the cases in this country the rule of nonliability of counties and officers for negligence is upheld. This rule is the logical result of the
In State v. Sharp,
“A single question is presented by the appeal for consideration and determination, and it is an important one. The question is whether- the state is liable to respond in damages for the negligent acts of its agents, servants or employees. As to this question it is well settled by the greаt weight of authority that the state, in consequence of its sovereignty, is immune from prosecution in the courts and from liability to respond in damagеs for negligence, except in those cases where it has expressly waived immunity or assumed liability by constitutional or legislative enactment.”
This rule was later approved in State v. Dart,
“A county is the loсal subdivision of a state or territory. It is created by the state for the purposes of government. Its functions, political and administrative, havе direct relation to the policy of the state. It is possessed of only such powers as the state chooses to give it. It can incur nо liability except in pursuance of law. It cannot be made to respond for wrongs committed by its officers or agents unless the statute so declares.”
While we are very much impressed with the very splendid argument of counsel for plaintiff in behalf of the rule that would make not оnly the county but its officers liable for negligence in the construction and maintenance of county highways, we think in view of the announcement in thе Haupt case, and the rule generally, this argument is one for the consideration of the legislative department and not the courts.
Plaintiff mаkes no contention that the statute anywhere has expressly created a right of action in tort against the county or against the county’s officers in this kind of a case. We are referred to those sections of the statute that make it the duty of the board of supervisors to build and maintain public highways and bridges and empower them to levy taxes for that purpose, and also pertinent legislation defining the duties of the сounty engineer in that connection. But these provisions of the law go no further. See subdivision 4, paragraph 2418, and paragraphs 5055, 5093, 5366, 5367, and 5368, Civil Codе 1913.
One of the latest cases bearing on this question is Murray v. Board of Commrs. of Grant County, 28 N. M. 309,
“The general rule is established by the great weight of authority that counties are not subject to*371 liability for torts committed in tbe exercise of tbеir governmental functions, unless such liability is established by direct statutory provision. See 15 C. J. ‘Counties,’ § 272; 7 E. C. L. ‘Counties,’ §29; 13 E. C. L. ‘Highways,’ § 256; Dillon, Mnnic. Corp. (5th ed.), § 1640; McQuillin, Munic. Corp., §§ 2605, 2719. The exemption of counties from liability for torts in the performance of its governmental functions is based upon the proposition that a cоunty is an involuntary subdivision of the state and exercises, by direction and command of the state, a portion of the governmental functions thereof. It is therefore as much exempt from liability for torts as the state itself. ’ ’
See, also, O’Brien v. Rockingham County, 80 N. H. 522,
The county can exercise its functions only through its officers. The duties rеquired of county officers are public duties. To hold that the principal is not liable in tort, but that its agent is upon the same state of facts, wоuld be, to say the least, a rather strange rule. In Packard v. Voltz,
“It must certainly be an anomalous doctrine that would exempt the corporation itself frоm liability for the doing of a lawful act in a negligent manner . . . and at the same time affix a liability upon its agent for precisely the same acts. ...”
See, also, Richardson v. Belknap, supra, and Wood v. Boone County,
“As thеy [the board-of supervisors] were engaged in a public work in virtue of their office, the rule of nonliability applies to them, as well as to the body for which they were acting.” Snethen v. Harrison County,
See, also, 19 R. C. L. 922, section 222; 9 C. J. 469, section 69.
McALISTEB, O. J., and LYMAN, J., concur.