O'Harra v. City of Portland

Prim, J. This action was brought in the circuit court of Multnomah county to recover damages sustained by respondents on account of an alleged defect in the sidewalk of a certain street in the city of Portland. The complaint alleges “that defendant is a municipal corporation duly organized under the laws of this state; that among other things, it is by the charter of said city made its duty to keep the streets and sidewalks of said city in good order; that the people of said city accepted said charter imposing said duty, and undertook the performance thereof prior to the year 1868; that a certain street in said city, known as Fifth street, was and is much used and traveled by the citizens and others, so much so that the said duty of said defendant, as to said street, became at the time hereinafter mentioned a matter of public and general concern.” It is further alleged that, “on or about the eighth day of July, 1868, Catharine O’Harra, one of plaintiffs, while traveling- over the sidewalk of said Fifth street, was, on account of a defect therein, precipitated through said sidewalk, whereby she was injured,” etc. Each and every allegation of the complaint is denied in the answer, except that defendant is a municipal corporation, etc. [526] The trial resulted in a verdict for respondents in the sum of $2,000, on which judgment was entered. A number of questions were raised and discussed in the argument of this case, but tbe only one wbicb we deem necessary to be decided by tbis court at present is, whether tbe city of Portland is liable, under tbe provisions of its charter, to any one for injuries to tbe person growing out of tbe defective condition of its streets. Section 347 of tbe code provides, that “an action may be maintained against a municipal corporation * * * * for an injury to tbe rights of tbe plaintiff, arising from some act or omission of such corporation.” Tbis section of tbe code was adopted in 1862, and tbe legislature, in adopting it, evidently intended to authorize tbe maintenance of such actions as tbis against municipal corporations. But in 1864, two years afterwards, and prior to the happening of tbe injury complained of in tbis action, tbe. legislature amended tbe charter of tbe city of Portland, by tbe adoption of section 127, which provides, that “tbe city of Portland is not liable to any one for any injury to tbe person * * * growing out of tbe condition of any streets.” (Special laws of 1864, p. 28.) Tbis provision of tbe charter, it will be seen, expressly exempts tbe city from any liability to persons for injuries received on account of streets being defective or out of repairs. But it is urged, that tbis provision of the charter is unconstitutional, and therefore void. To sustain tbis proposition, section 21 of article 1 of the constitution of the state is cited, wbicb provides, among other things, that “no law impairing the obligation of contracts shall ever be passed.” How this amendment of tbe charter violates tbis provision of the constitution, we are unable to see; for it is not contended that there is any express contract on tbe part of tbe city to be responsible for tbe defective condition of its streets and sidewalks; and it certainly cannot be claimed that there is an implied contract to that effect, when in tbe yery act of tbe legislature under which the city is incor [527] porated it is expressly provided, that it shall not be liable for injuries to the person growing out of the defective condition of its streets and sidewalks. The court being of the opinion that the city is not liable under this provision of its charter for such injuries as are set out in the complaint, it is ordered that the judgment of the circuit court be reversed.