26 Iowa 264 | Iowa | 1868
Counties are involuntary political or civil divisions of the State, created by general statutes, to aid in the administration of government. They are essentially public in their character and purposes. They are simply governmental auxiliaries, created bodies corporate “ for civil and political purposes only.” Kev. § 221. To the statute they owe their creation, and the statute confers upon them all the powers which they possess, prescribes all the duties which they owe, and imposes all the liabilities to which they are subject.
To enable them the better to exercise their powers and discharge their duties, our statute clothes them with corporate capacity. Considered with respect to their powers, duties and liabilities, they stand low down in the scale or grade of corporate existences. It is for this reason that they are ranked among what have been styled quasi corporations. This designation is employed to distinguish them from private corporations aggregate, and from municipal corporations proper, such as cities, acting under general or special charters, more amply endowed with corporate life and functions, conferred in general at the request of the inhabitants of the municipality for their peculiar 'and special advantage and convenience.
Thus, incorporated cities and towns, wherever they are invested by their organic or constituent acts with general supervision and control over their streets, with power to grade and to improve them, and with the power to levy taxes or raise revenue, which may be used for the purposes of such repair, are held liable, without any statute expressly giving the action, for injuries caused by unsafe and defective streets.
To this effect may be found decisions in almost all, if not in every State of the Union. We need but refer to-the following: Rusch v. Davenport, 6 Iowa, 443; McCullom v. Blackhawk Co., 21 Iowa, 409; Weightman v. Washington, 1 Black (U. S.) 39; Erie v. Swingle, 22 Penn. St. 384; Browning v. Springfield, 17 Ill. 143; Wilson v. The Mayor, 1 Denio, 595; Dayton v. Pease, 4 Ohio St. 80; Smoot v. The Mayor, 24 Ala. 112; Chicago v. Robbins, 2 Black (U. S.) 418; Nebraska v. Campbell, id. 590; Weet v. Brockport, 16 N. Y. 161, note; Lloyd v. The Mayor, 5 id. 369; Hyatt v. Rondout, 44 Barb. 385; Dewey v. Detroit, 15 Mich. 309.
Mower v. Leicester, 9 Mass. 240; Corners v. Martin, 4 Mich. 557; Farnum v. Concord, 2 N. H. 392; Eastman v. Meredith, 36 N. H. 284 (full discussion); Bartlett
The prior decisions of this court assume that the county, in analogy to the liability of municipal corporations with respect to their streets, is liable for the unsafe condition of county bridges proper ; that is, bridges built by the county authorities in the exercise of their statutory power “ to make and repair” bridges (Eev. § 312 par. 18; § 710), they being expressly empowered to levy a bridge tax on the taxable property of the county. Rev. § 710; and see also Barrett v. Brooks, 21 Iowa, 144; Bell v. Foutch, id. 119; McGullom v. Blackhawk Co., 21 id. 409; Brown v. Jefferson Co., 16 id. 839; Wilson & Gustin v. Jefferson Co., 13 id. 181.
Assuming, then, that there are bridges for whose safe condition the county is liable, the question now before us is, whether the small bridge or culvert which occasioned the injury to the plaintiff, is one which the county authorities were bound to keep in repair, and for the neglect of which duty the county is liable to a civil action for damages ?
Our system of making and keeping in repair bridges and highways is somewhat peculiar, and is discussed with considerable fullness in the cases of Bell v. Foutch and Barrett v. Brooks, supra.
By reference to these cases and to the various statute provisions there referred to, it will be seen that the county or the county authorities are not charged with the making and repair of roads and highways. On the contrary, the various townships of the county are divided into road
As counties are not charged by law with the duty of keeping in repair the ordinary highways or roads, but as this duty is committed to the several road districts whose officers act independently, and in the exercise of their duties are not under the control of the county authorities, and as no right of action is given against the county in respect of defective roads, the conclusion is undeniably correct, that the county is not liable for a private injury sustained by the omission of the road district officers to keep in repair the roads and bridges which the law commits to the jurisdiction and control of the several road districts.
The bridge which occasioned the injury in question is one of those small bridges which the law contemplates shall be built and kept in repair by the road district, and the evidence shows that such was the understanding of the people of the district. It is not one of those large bridges requiring extraordinary expense to build and maintain, such for example, as the one which occasioned the injury in Brown v. Jefferson Co. (16 Iowa, 339), or the one which was in question in the eases of Barrett v. Brooks, Bell v. Foutch and McCullom v. Blackhawk Co., above cited.
The general language of section 312, paragraph 18 of the Revision, is to be construed in connection with the general provisions of the statute regulating the making and repair of highways. Rev. § 880, ei seq.
The duty of amending roads is, as we have seen, not imposed by the statute upon the county as a corporation, but upon the road districts; and for the default of the road supervisor or road district, or of its officers, the county is not liable unless the bridge is one of those larger and more expensive structures which would come under the designation of county bridges, such as the county would be bound to build and repair, or one over which, or the repairs on which, the county or its officers had exercised jurisdiction. McCullom v. Blackhawk Co., 21 Iowa, 417.
Our statute by imposing the duty of making and repairing such structures as the present upon the road districts, negatives the idea of any common law liability (if, indeed, such a liability could in any case be claimed to exist) on the county to keep them in repair.
And because the road district is not liable (White v. Road District, 9 Iowa, 202), and because the road supervisor, who, having been appointed only the day before the injury, was not notified as the statute requires, would not be liable (Rev. § 902), it does not follow that the county is responsible, the more especially as it was not its duty to fill the vacancy in that office. Rev. § 884.
The sections of the statute bearing upon the question of the liability of the county, viz.: Rev. §§ 221, 312, 819, 822, 710, 880, et seq., have all been considered, and the opinion of the court is, that the court below rightly held, that the county was not liable to the plaintiff in respect of the injury for which his action was brought. If the county ought to be liable in such a case, the remedy must-be sought from the legislature.
Affirmed.
