Silver v. Board of County Commissioners

The opinion of the court was delivered by Smith, J.: According to the allegations of the petition the removal of the bridge by the county commissioners was illegal and imposed great hardship upon the plaintiff, and he would, perhaps, under the authority of Greeley Township v. Comm’rs of Saline Co., 26 Kan. 510, 514, have been entitled to enjoin the act, or may even yet not be without a remedy. However, [230] before the decision of the court sustaining the demurrer can be reversed we must be able to say that the county is responsible in damages for the wrong alleged. It is well-established law that a county is an involuntary corporation for governmental purposes, and is in no sense a business corporation; that the powers and obligations of the county are such only as the law prescribes or as arise by necessary implication therefrom. (Eikenberry v. Township of Bazaar, 22 Kan. 556, 31 Am. Rep. 198; Comm’rs of Marion Co. v. Riggs, 24 Kan. 255; 11 Cyc. 497; 7 A. & E. Encycl. of L. 947.) Cities, however, in this state are municipal corporations, and neither their powers nor obligations are so restricted, and decisions'as to their liability for negligence have no application here. We have not been cited to any statute, and believe none exists, which imposes any obligation upon a county to respond in damages for the negligence or even wrongful act of its officers in relation to the maintenance of public roads or bridges, except section 579 of the General Statutes of 1901, which reads: “Any person who shall without contributing negligence on his part sustain damage by reason of any defective bridge, culvert, or highway, may recover such damage from the county or township wherein such defective bridge, culvert or highway is located, as hereinafter provided; that is to say, such recovery may be from the county when such damage was caused by a defective bridge constructed wholly or partially by such county, and when the chairman of the board of county commissioners of such county shall have had notice of such defects for at least five days prior to the time when such damage was sustained; and in other cases such recovery may be from the township, where the trustee of such township shall have had like notice of such defect.” Since first the state was organized it has been the duty of counties and the townships thereof to maintain public roads and bridges, but not until the passage of the above statute, in 1887, was either a county or. township liable in damages resulting from the failure [231] so to do. (Eikenberry v. Township of Bazaar, 22 Kan. 556, 31 Am. Rep. 198; Comm’rs of Marion Co. v. Riggs, 24 Kan. 255.) The language of section 579, supra, at first blush, seems quite inclusive in its terms; possibly broad enough to include damages claimed in the petition herein. A consideration, however, of the former law upon the subject, and of the radical change therein by the provisions of this- enactment, even when strictly construed, and especially of the qualifying words “without contributing negligence on his part,” compels the conclusion that the enactment is intended only to authorize the recovery of damages suffered in the use of a' highway or bridge for the purposes for which it is maintained when, after the requisite notice, it is negligently allowed to remain defective. The petition charges, as the basis of the claim for damages, an illegal and wrongful act to which there can be no “contributing negligence.” If the plaintiff had even assisted in the removal of the bridge he would not thereby have been guilty of contributory negligence, although by so doing he evidenced his consent to the illegal act. Clearly the statute was not intended to apply to damages of the nature complained of. We conclude, with some reluctance, that the judgment, of the court must be sustained, and it is so ordered.