Templeton v. Linn County

Strahan, C. J. The proposition, that at common law a county was not liable for an injury resulting from a defect in one of its highways or roads, is established by an array of authorities which cannot be questioned. (White v. Comrs. 90 N. C. 437; 47 Am. Rep. 534; Dosdall v. Olmstead Co. 30 Minn. 96; 44 Am. Rep. 185; Wood v. Tipton Co. 7 Bax. 112; 32 Am. Rep. 561; Brabham v. Supervisors, 54 Miss. 363; 28 Am. Rep. 352; White v. Bond Co. 58 Ill. 297; 11 Am. Rep. 65; Downing v. Mason Co. 87 Ky. 208; 12 Am. St. Rep. 473; Reardon v. St. Louis Co. 36 Mo. 555; Swineford v. Franklin Co. 73 Mo. 279; Clark v. Adair Co. 79 Mo. 536; Granger v. Pulaski Co. 26 Ark. 37; Barnett v. Contra Costa Co. 67 Cal. 77; Scales v. Ordmary, 41 Ga. 225; Hedges v. Madison Co. 6 Ill. 567; Marion County v. Riggs, 24 Kan. 255; Watkins v. County Ct. 30 W. Va. 657; Manuel v. Board of Comrs. 98 N. C. 9; Fry v. Albemarle Co. 86 Va. 195; 19 Am. St. Rep. 879; Gilman v. County, 8 Cal. 52; 68 Am. Dec. 290; Woods v. Colfax Co. 10 Neb. 552; Monroe Co. v. Flynt, 80 Ga. 489; Board of Comrs. v. Mighels, 7 Ohio St. 109; Freeholder v. Strader, 18 N. J. L. 108; 35 Am. Dec. 530; Cooley v. Freeholders, 27 N. J. L. 415; Pray v. Jersey City, 32 N. J. L. 394; Young v. Comrs. 2 Nott & McC. 537; Ensign v. Supervisors, 25 Hun, 20; Bartlett v. Crozier, 17 Johns. 449; 8 Am. Dec. 428; Cooley’s Const. Lim. 3 ed. 247, 6 ed. 301; Dill. Mun. Corp. — 315 — §§ 996, 997, 999; Barbour Co. v. Horn, 48 Ala. 566; Covington Co. v. Kinney, 45 Ala. 176; Rankin v. Buckman, 9 Or. 253; Sheridan v. Salem, 14 Or. 328; Ford v. Umatilla Co. 15 Or. 313; Grant Co. v. Lake Co. 17 Or. 453; State ex. rel. v. Comrs. 11 Ohio St. 183; Morey v. Newfane, 8 Barb. 645; Lorillard v. Monroe, 11 N. Y. 392; 62 Am. Dec. 120; Smith v. Board, 46 Fed. Rep. 340; Barnes v. Columbia, 91 U. S. 540; Conrad v. Ithaca, 16 N. Y. 158.) The appellant did not seek to controvert this proposition upon the trial in this court. Her only contention is, that at and before the adoption of the constitution of this state, there was a statute in force in the then territory, enacted by its legislature, creating a liability against any county where any injury might happen to any person through a defective road or bridge, where such road or bridge was under the control of the county court or board of county commissioners of such county, and that by section 10, article 1, of the constitution, the legislature of the state was disabled from repealing said territorial statute, without enacting another which would be a substantial equivalent for the law as it then stood upon that subject. The provision of the constitution relied upon is as follows: “No court shall be secret, but justice shall be administered openly and without purchase, completely and without delay; and every man shall have remedy by due course of law for injury done him in person, property, or reputation.” Section 347 of the code, as originally enacted, is not materially variant from the law as it stood prior to the adoption of the constitution, and is as follows: “An action may be maintained against a county or other of the public corporations mentioned or described in section 346, either upon a contract made by such county or other public corporation in its corporate character, and within the scope of its authority, or for an injury to the rights of the plaintiff, arising from some act or omission of such county or other public corporation.” In 1887 this section was amended by omitting the words, “or for an injury to the rights of the plaintiff, arising from some act or omission of such county or other public corporation,” and by the addition — 316 — of the words, “ and not otherwise,” after the word “ authority,” in said section. The liability created against a county by this statute, as it existed prior to the amendment in 1887, was recognized and enforced in McCalla v. Multnomah County, 3 Or. 424, and the rule there stated continued to be recognized until the amendment. This is the first case arising under the statute as amended that has reached this court. There being no common law liability, unless the statute has created a liability, there is none; and the statute having been repealed, there is none under the statute, if it were competent for the legislature to repeal it. It must be conceded that the right to repeal existed unless the legislature was prohibited or restrained from repealing it by article 1, section 10, of the constitution. The words, “and every man shall have remedy by due course of law for injury done him in person, property, or reputation,” are claimed to operate as a guaranty in favor of all persons who might be injured by a county’s neglect, that the legislature should never so change the statute as to destroy the liability of such county. In other words the constitution found a certain liability created by statute resting upon the several counties, and tied the hands of the legislature so that such liability should endure as long as the constitution shall remain in force. As a proposition of constitutional law, this contention seems startling • and although the constitutions of many of the states of this union contain substantially the same provision as section 10, supra, no judicial authority was cited upon the argument in support of it, and I think it may be safely assumed that none exists. The repeal of the statute creating the liability of a county for negligence, is not the only way that liability might be destroyed. It is within the power of the legislature to repeal the act creating a county, and with such repeal a liability would be as effectually cancelled and destroyed as if the county had never existed. Says the supreme court of the United States, in Laramie County v. Albany County, 92 U.S. 307: “Corporations of this kind are properly denomi — 317 — nated public corporations, for the reason they are parts of the machinery employed in carrying on the affairs of the state; and it is well settled law that the charters under which corporations are created, may be changed, modified, or repealed, as the exigencies of the public welfare may demand.” And the plenary power of the legislature over such corporations was fully recognized by this court in Morrow Co. v. Hendryx, 14 Or. 397. It was argued upon the trial that the act making counties liable for the neglect of those who may be entrusted with the administration of their affairs for the time being, was in the nature of a remedy, and for that reason it was placed beyond the power of the legislature to repeal it. A remedy for what? If this statute creates a remedy, where is the law that creates the liability ? We have seen that it is not the common law, and there was no other statute on the subject. So that to maintain the doctrine claimed by the appellant, it would have to be held that this statute performed the double office of creating the liability against the county, and also of furnishing a remedy whereby the liability may be enforced, and these by the same words of the act. A process of reasoning which leads to such consequences must be fallacious. In this case the statute making the county liable was repealed before the alleged injury. At the time of the repeal the plaintiff had no cause of action against Linn county, and her sole cause of complaint is that the repeal of the statute, before the injury, cut off a cause of action which she otherwise would have had against the county. If the plaintiff’s rights had accrued before the repeal of the statute, there would have been more reason for her contention, but it would not have been well founded in that case; but when the repeal of the statute did not in any manner affect her at the time, it is difficult to see how her misfortunes, happening after its repeal, can furnish her any grounds of complaint. In a legal sense there can be no liability for negligence where the defendant owed the — 318 — plaintiff no duty; and inasmuch, as the duty which a county owed was created by statute only, its repeal destroyed the only foundation upon which an action for negligence could rest. It was insisted upon the argument that section 10, supra, was in the nature of a guaranty to the citizens of the state that some rights were secured to them which are placed beyond the power of legislation, and that it was the duty of the court to define those rights. The time allowed for the consideration of this subject is too brief to allow an exhaustive examination of it; besides, it is never safe for a court to undertake to decide any more than the exact question before it. In addition to this, on the principle of inclusion and exclusion, the court will be better able to to determine the effect of this provision of the constitution in each particular case as it shall arise. I think it may be safely said, that without the existence of a right, a party is entitled to no remedy, and the constitution does not purport t'o guarantee any. The rights of a party may be violated, and for such violation such party must have a remedy. What are these rights? Vested rights undoubtedly. Said Judge Cooley : “ But a vested right of action is property in the same sense in which tangible things are property, and is equally protected against arbitrary interference. When it springs from contracts, or from the principles of the common law, it is not competent for the legislature to take it away; and every man is entitled to a certain remedy in the law for all wrongs against his person or his property, and cannot be compelled to buy justice, or to submit to conditions not imposed upon his fellows as a means of obtaining it.” Vested rights are placed under constitutional protection, and cannot be destroyed by legislation. Not so with those expectancies and possibilities in which the party has no present interest. Take the statutes of descent, by way of illustration. A man’s heirs have no vested interest in that statute, though, if left unre — 319 — pealed until liis death, they would inherit his property; but the legislature might interfere in the mean time and repeal the law altogether, or by a new act change the course of descent, and they could have no cause of complaint. Under a constitutional provision in all respects similar to our own, it was held that there is no vested right in the law generally, nor in legal remedies, and it is competent for the legislature to make changes in these so long as they do not affect the obligation of contracts. (Edwards v. Johnson, 105 Ind. 594; Bryson v. McCreary, 102 Ind. 1.) In Oriental Bank v. Freese, 18 Me. 109; 26 Am. Dec. 701, it was held that the legislature has power to take away by statute what is given by statute except vested rights. So in Fire Depart. v. Ogden, 59 How. Pr. 21, it was held that where a penalty has been imposed by law, the legislature has power to repeal it entirely, or to limit the causes in which it is recoverable, even though an action has been brought for its recovery. And in Welch v. Wadsworth, 30 Conn. 149; 79 Am. Dec. 236, it was held that by the repeal of the penal statute, all penalties fall even if given to individuals and suit has been brought and is pending for them. So also in Bank v. State, 12 Ga. 475, it was held that an informer who commences a qui tam action under a penal statute, does not acquire thereby a vested right to the forfeiture; his claim to the penalty is inchoate and cannot be fixed except by judgment; and held further, that no judgment can be rendered on a repealed statute; the repeal prevents the imperfect right from being consummated, and it is competent for the legislature to pass such repealing statute at any time before final judgment; and it matters not whether the whole penalty, when recovered, is given to the public, or the prosecutor, or divided between them. The same doctrine is announced in Parmelee v. Lawrence, 44 Ill. 405; Henschall v. Schmidtz, 50 Mo. 454; Chaffee v. Aaron, 62 Miss. 29; County of Menard v. Kincaid, 71 Ill. 587; Musgrove v. Vicksburg etc. R. R. Co. 50 Miss. 677. — 320 — It must not be overlooked that courts never declare an act of the legislature unconstitutional unless the conflict is manifest and free from all reasonable doubt. This alone ought to be sufficient to save the act of 1887 from that fate. I regret that a want of time prevents a fuller and more careful review of this most important and interesting subject; but enough has been said to indicate the main reasons on which this opinion is based. That is all that is possible at present. I think the judgment appealed from should be affirmed.