116 Kan. 96 | Kan. | 1924
The opinion of the court was delivered by
These are two cases of private parties against the Board of County Commissioners of Montgomery county for dam- , ages to their growing crops caused by water which came through a defective floodgate in an artificial embankment on the Verdigris River near Coffeyville.
The Verdigris River Drainage District, No. 1, of Montgomery county, erected the embankment as part of a system of flood protection for lands adjacent to the Verdigris River near Coffeyville.
“That said damages were caused by the negligence of the defendant, The Board of County Commissioners of the County of Montgomery, Kansas, in not keeping said floodgate in proper repair and in not giving it the proper care so that it would not, become out of repair and clogged up and by permitting it to become out of repair and clogged up thereby permitting and causing the lowlands and plaintiff’s premises, above described, to become inundated or covered with water for several days, killing all the vegetation on plaintiff’s said premises.”
Demurrers to these petitions were sustained, and plaintiffs appeal.
Is there error here? It is simple textbook law that neither the state itself nor any of its political subdivisions, counties, townships, and the like, can be subjected to liability in damages except where positive statutes so provide. And in general the legislature has been very chary about giving its sanction to anything of the sort. It has allowed liabilities, under qualification, to be imposed on counties and townships for damages sustained because of defective roads and bridges, and declared cities to be amenable to damages through mob violence. Cities being full-fledged corporations with both private and public attributes are also liable as wrongdoers in some other respects. But mere political subdivisions and quasi-corporations created by the state for its own governmental
In Pfefferle v. Comm’rs of Lyon Co., 39 Kan. 432, 17 Pac. 828, the plaintiff sued the county for damages for grievous injuries to his health because of his confinement in a damp and unwholesome jail. A demurrer to his petition was sustained. On appeal the judgment was affirmed. This court said:
“Of course, where the statutes provide that a county shall be liable, it will be liable; ... It is true that counties are to a limited extent corporations; but they are not private corporations, and they are not in a strict sense municipal corporations. They are usually denominated quasi-corporations, and their principal functions are governmental and political, and not private or of a strictly corporate character. Counties are principally mere political subdivisions of the state, mere instrumentalities of the state government, brought into existence merely for the purpose of aiding and assisting the state in promoting justice, in preserving peace, quiet and good order in the state, and of promoting the welfare and happiness of the citizens thereof.” (p. 436.)
In Thomas v. Ellis County, 91 Kan. 443, 138 Pac. 409, where plaintiff sought and was denied damages for various injuries and expenses incurred by her through the alleged fault of the county commissioners, this court said:
“The sole question presented is whether the county is liable for damages, as claimed by the appellant. The judgment of the court was doubtless based upon a principle, which has the sanction of numerous decisions in this state, to the effect that counties are merely auxiliary agencies of the state and, like the state itself, are immune from liability on account of damages occasioned by the manner in which they either exercise or fail to exercise governmental powers. (Silver v. Clay County, 76 Kan. 228, 91 Pac. 55; Shawnee County v. Jacobs, 79 Kan. 76, 99 Pac. 817; Fisher v. Township, 87 Kan. 674, 125 Pac. 94.)
“In Silver v. Clay County, supra, it was said in the syllabus:
“ ‘A county is not liable in damages for the negligent or wrongful acts of its board of county commissioners, unless such liability is expressly imposed by statute or necessarily implied therefrom.’ ” (p. 445.)
These authorities could be extended indefinitely by citations or quotations from any court report or law book where the subject is touched, and there is virtually no want of unanimity in the prevailing view of the county’s nonliability.
Is the case of Williams v. Kearny County, 61 Kan. 708, 60 Pac. 1046, pressed on our attention by plaintiffs, at variance with this
“It can not be held that the opinion in the Williams case overrules well-settled principles firmly established by prior decisions and followed without qualification since, upon which counties and townships are held exempt from liability in cases like the one now under consideration.”
The judgment is affirmed.