Schroeder v. Multnomah County
76 P. 772
Or.
1904
Check Treatment
Mr. Justice Bean

delivered the opinion of the court.

This is an action against Multnomah County to recover damages for an injury received by the plaintiff on account of a defeсt in Morrison-street Bridge, alleged to have been due to the negligence of the defendant county, its officers and agents. Morrison-street Bridge spans the Willamette Biver in the City of Portland, and connects the streets on either side, making them a continuous public highwаy. The bridge was originally built and operated by a private corporation as a toll bridge, but in 1895 the legislature passed an aсt “to authorize the City of Portland” to acquire it by purchase or condemnation, a committee being designated to make the purchase, and- authorized to issue and dispose of the bonds of the city for that purpose: Laws 1895, p. 421. The act provided that, after the bridge was thus acquired, the committee should turn it over to the county court of Multnomah County, which should take charge of, manage, and operate it as a free bridge, being given power and authority to employ such agents ánd servants as it might deem necessary, and to make all needful rules and regulations for the conduct, management, and use of the bridge by the city, its inhab*96itants, and the рublic in general. It was also required to levy and collect an annual tax upon all the taxable property within the county, suffiсient to provide a fund with which to maintain and keep the bridge in good condition and repair during the ensuing year. After the organizatiоn of the bridge committee, it issued bonds as provided, with the proceeds of which it purchased the bridge for and in ‍​‌​‌‌​​​​‌‌‌‌‌‌‌​​​‌‌‌‌​​‌​​​‌‌​​‌​‌‌​​‌​​​​​​‌‌‍the name of the сity, turning the management and control thereof over to the county court of Multnomah County, wrhich has ever since operatеd arid maintained the same as a free bridge and public highway. The single question on this appeal is whether, under these circumstanсes, the county is liable for .an injury resulting from, a defect in the bridge, due'to the negligence of its officers and agents.

1. It must, we think, be acсepted as settled law that, unless made so by statute, a county is not liable for an injury resulting from a defect in a public road or highway, notwithstanding the law may require it to keep such road or highway in repair, and give it ample power to provide means with which to discharge the obligation. Such was the decision in Templeton v. Linn County, 22 Or. 313 (29 Pac. 795, 15 L. R. A. 730), and, notwithstanding the argument of counsel, ably restating the grounds upon which it was sought to maintain that action, we are not disposed to overrule the decision. ‍​‌​‌‌​​​​‌‌‌‌‌‌‌​​​‌‌‌‌​​‌​​​‌‌​​‌​‌‌​​‌​​​​​​‌‌‍Unless there is some statute, therefore, making Multnomah Cоunty hable for negligence in the operation or maintenance of Morrison-street Bridge, the plaintiff cannot recovеr.-

2. The only statute having any bearing upon the question is section 59, p. 280, Act 1903, which provides: “When any individual,- while lawfully traveling upon any highway of this Stаte or bridge upon such highway, the same being a legal county road, shall, without contributory negligence on his part, and without knowledgе upon his part of the defect or danger, sustain any loss, damage, or injury, in *97consequence of the defective and dangerous character of such highway or bridge, either to his person or property, he shall be entitled to recover of the county in which such loss, damage, or injury occurred, compensatory damages, not to exceed the sum of $2,000 in any case, by an aсtion in the circuit ‍​‌​‌‌​​​​‌‌‌‌‌‌‌​​​‌‌‌‌​​‌​​​‌‌​​‌​‌‌​​‌​​​​​​‌‌‍court of such county, or in a justice’s court therein, if the amount of damages sued for shall not exceed the sum of $250”: Laws 1903, pp. 262, 280, § 59. This is practically a reenactment of the act of 1893, passed soon after the decision in the Templeton Case (Laws 1893, p. 141, § 1), * and which was intended to give a remedy where none existed before. It imposed a new liability upon a county, and must therefore be strictly construed : McFerren v. Umatilla County, 27 Or. 311 (40 Pac. 1013). By its terms, the right to the remedy is confined to one injured while lawfully traveling upon a highway of this State, or bridgе upon such highway, “the same being a legal ‍​‌​‌‌​​​​‌‌‌‌‌‌‌​​​‌‌‌‌​​‌​​​‌‌​​‌​‌‌​​‌​​​​​​‌‌‍county road.” It is apparent from the language used that the legislature only intended tо provide a remedy for an injury received by a traveler on a county road or highway.

3. It is unnecessary to consider at this time what kind of a highway will be deemed “a legal county road ” within the meaning of the statute, since by no possible construction can the term be held to include a city street or bridge. Morrison-street Bridge, upon which plaintiff was traveling at the time of her injury, is and was the proрerty of, and one of the highways of, the City of Portland, and in no sense a county road or highway. That question was practically .determined in Simon v. Northup, 27 Or. 487 (40 Pac. 560, 30 L. R. A. 171), which was a mandamus proceeding to compel the county to take over the management and control ‍​‌​‌‌​​​​‌‌‌‌‌‌‌​​​‌‌‌‌​​‌​​​‌‌​​‌​‌‌​​‌​​​​​​‌‌‍of thе bridge now in question. The constitutionality of the act was challenged by the county on the *98ground that it was a special act to рrovide for “ working on highways,” and therefore in conflict with article IV, § 23, subd. 7, of the constitution, but the court held that Morrison-street Bridge was not a highway within the meaning of the constitution, which was intended to apply to such roads and highways as are a part of the general highway system of the State and can be maintained and repaired under the general law, and not to the public bridges and ferries of а city. The opinion proceeded all the way through upon the theory that the bridge in question was the property and one of the highways of the city, and that the act of the legislature simply transferred its supervision and control from the city to the county, without constituting it the property of the county or a county road or highway. The transfer of the control and supervision of the bridge from the city to. the county was merely to provide for its convenient operation and maintenance. The act of the legislature making such transfer defines the rights, powers, duties, and liabilities of the county, and, as the legislature has not imposed upon it a liability for negligence, the courts cannot do so under the general, act making a county liable for an injury resulting from a defect in' a “legal county road,” even though the county may be charged by law with the duty of keeping the bridge in repair, and be given power to рrovide a fund for that purpose. The question as to whether the county should be liable for negligence in the performancе of the duty imposed upon it is a legislative, not a judicial one, and, until the legislature sees proper to make it liable by statute, no action can be maintained against the county therefor.

It follows that the demurrer was properly sustained, and the judgment of the court below will be affirmed. ■

Affirmed.