Pearson v. City of Portland

| Me. | Mar 21, 1879

Walton, J.

In 1872 the legislature of this state enacted the following statute:

“No person shall recover of any city or town in this state, damage for injury to person or property, which damage is claimed to have been done in consequence of any defect, or want of repair, or sufficient railing, in any highway, townway, causeway or bridge, provided the said damage be done to or claimed by any person, who was at the time said damage was done a resident of any country where damage done under similar circumstances is not recoverable by the laws of said country.” Act 1872, c. 34.

The only question we find it necessary to consider is whether this act is constitutional. We think it is not. It is in conflict with the 14th amendment of the United States Constitution, which declares, among other things, that no state shall “ deny to any person within its jurisdiction the equal protection of the laws.” By the general statutes in force in this state at the time of the passage of this act (and still in force), every person sustaining an injury, in person or property, through any defect, or want of repair, in any highway, townway, causeway or bridge, could recover for the same, in an action on the case, of the town, city or county whose duty it was to keep the way in repair. B. B., c. 18, § 65. This is a protective law. It guards the traveler against injuries, by making towns and cities more careful to keep their ways in repair, and shields him from loss in case he is injured through their negligence in not keeping them in repair. And it is universal in its application. It protects every one alike. The act of 1872 undertakes to destroy this equality of protection. It declares in effect that one class of persons shall not bo thus protected ; that if they happen to be residents of a country where no similar protection exists, they must travel in this state at their peril, and without that protection which the law affords to all others. They may be citizens of the United States and of this state, and within its jurisdiction at the time of injury ; still, they are denied redress, denied “ the equal protection of the laws,” on account of the condition of the law of a foreign country, for which they may be no more responsible than they are for the color of their eyes or the color of their skins. The denial might as well be based on race or color as upon the law of a foreign country; for the parties to be affected by it may be as powerless to change the one as the other. The general statute may undoubtedly be repealed ; but the court is of opinion that while it remains in force for the protection of one class of persons within the jurisdiction of the state, it must remain in force for the protection of all others similarly situated.

The plaintiff was within the jurisdiction of the state at the time of her injury. She has established her right to recover for it, unless the act of 1872 is a bar. For the reasons above stated, the court is of opinion that it is not a bar.

Judgment on the verdict.

Appleton, C. J., Barrows, Yirgin and Libbey, J J ., concurred.