Gratney ex rel. Gratney v. Board of County Commissioners

The opinion of the court was delivered by West, J.: An opinion in this case was filed June 11, 1921, but in view of the motion for rehearing it was not officially reported. After considering the motion and again going over the entire matter the court has reached the final conclusion indicated below. The action was brought in 1916 for injuries occurring in October, 1915, by reason of a defect in a highway in Wyandotte county, known as the Leavenworth road, against the county and township under section 237 of the Laws of 1887, being section 722 of the General Statutes of 1915. The township moved to make the petition more definite by stating whether or not the highway was a county — 161 — or township road, which motion was overruled. Then the township demurred to the petition, which demurrer was overruled, and thereafter an answer was filed alleging that the accident was on a county road over which the township had no control or authority. An objection to testimony under the petition was overruled. An instructed verdict was asked for and denied. The jury were charged that the petition alleged the township had caused and suffered a large hole to be and remain at a point about six hundred feet west of the intersection of the Kansas City Western Railway Company’s line and the Leavenworth rock road, and had failed and neglected to erect any barrier or other guards around the same, and had failed and neglected to warn persons traveling upon the road against the-defect, which was well known to the trustees of the township, who had actual notice thereof more than five days before the injury; that under the laws of this state any person who shall, without contributing negligence on his part, sustain damages by reason of a defect in a road within a township may recover such damages from such township, when the township trustee shall have had notice of such defective condition for at least five days before the injury. The township objected to this instruction. The plain-' tiff recovered. A motion for a new trial was overruled, and the township appeals. Counsel for the township insists that the liability, if any, rests upon the county and calls attention to chapter 276 of the Laws of 1899, entitled: “An act empowering the county of Wyandotte to improve and maintain certain public highways and to levy and collect taxes for that purpose.” The act authorizes and empowers the board to improve and maintain certain roads, including the one in question, and provides that whenever these highways or any part of them shall have been properly graded and prepared for macadamizing by township boards, road overseers, or by private parties,-it shall then become the duty of the board of county commissioners to cause the same, or such parts or sections thereof as shall have been graded and prepared, to be macadamized, and provides that to defray the expense thereof a county tax not exceeding two mills on the dollal shall be levied and the funds derived therefrom set aside and used exclusively for this purpose. — 162 — In 1874, the legislature enacted chapter 108, which until after the compilation of 1885 remained a general statute in relation to roads and highways. Beginning with section 16 of that act it appears that an incorporated city of more than six hundred inhabitants should constitute a road district. Section 27 provided that if at any time a highway should be obstructed or become impassable, or any bridge should be impaired so as to make it unsafe— “It shall be the duty of the overseer of the district in which such obstruction, impassable road or impaired bridge may be situated, to cause such obstruction to be removed, or such road or bridge to be repaired forthwith. In the compilation of 1885 this statute was included with chapter 150 of the Laws of 1883, requiring road overseers to remove all cockle burrs and other obnoxious weeds and to prohibit the plowing up of the public highway for the purpose of scouring plows except under the direction of the overseer. No further act of a general nature was passed until 1887, when chapter 214 was enacted providing for the maintenance of county roads by the county commissioners. At this session was also passe'd chapter 237, the only statute ever enacted by the legislature of this state providing for recovery of damages for defective highways. The legislature of 1901 enacted chapter 296, amending section 12 of the act of 1874, and required each road overseer to open or cause to be opened all state and county roads, “and the overseer shall keep the same in repair, and remove or cause to be removed all obstructions that may be found therein.” He was also authorized to enter upon any uncultivated land and use materials, dig ditches necessary for such keeping in repairs, all claims to be allowed and paid by the county board. Chapter 299 authorized the board of Wyandotte county to improve and maintain the Muncie boulevard. Chapter 300 amended chapter 276 of the Laws of 1899, and authorized the board to improve and maintain the Reidy road, the Leavenworth road, the Kaw Valley road and certain other roads named therein, repealing section 1 of the act of 1899. Chapter 301 authorized a certain other road, the act being made supplemental to chapter 276 of the Laws of 1899, and section 2 made it the duty of the county commissioners to expend in the improvement or macadamizing and maintenance such proportion of the two-mill tax levy authorized by chapter 276 of the Laws of 1899, as should be equal to the amount of such levy expended and used by the board for. the improvement and maintenance of other — 163 — roads-in the county under such act and acts supplemental thereto. Of a similar character were chapter 420 of the Laws of 1903, chapter 421, and chapter 422. The legislature of 1905 passed a general act in relation to public highways, being chapter 362. This made the township board commissioners of highways of their respective townships: “And all roads shall be under the direct control of the township commissioners of roads and highways, except incorporated cities of more than six hundred inhabitants. . . .” Section 4 provided that such commissioners should have entire control and general supervision of all roads and highways in their respective townships, and all tools and implements, and road machinery together with all materials for the construction of culverts and bridges. Chapter 375 was like the act of 1899, as were also chapters 376 and 377. Chapter 378 authorized the grading, curbing and macadamizing of certain other roads to be let on bids and paid for by a tax levied by the board. Chapter 379 gave similar authority with reference to Eighteenth street and required the board to expend therefor the proper proportion of the levy provided for by the act of 1899. Section 5 provided— “That to defray the cost of macadamizing and maintaining county roads, the board of county commissioners are hereby authorized and empowered to levy and collect annually, on all of the taxable property of said county, a tax not exceeding two mills on the dollar, and the funds provided from such taxation shall be set aside and used exclusively for the improvement of county roads, and for no other purpose.” This appears therefore to have been a general authority and requirement touching macadamizing and maintaining of all county roads in Wyandotte county. Chapter 292 of the Laws of '1907 amended section 1 of chapter 362 of the Laws of 1905, and made' members of the township board commissioners of roads and highways of their respective townships, and provided that “all roads shall be under the direct control of the township commissioners of roads and highways, except incorporated cities, . . .” Chapter 294 authorized the commissioners of roads and highways to divide their respective townships, further amending the act of 1905. Chapter 299 amended section 1 of chapter 276 of the Laws of 1899, naming certain roads, not including the Leavenworth road by name. Chapter 300, supplemental to the act of 1899, authprized the board to improve, macadamize and maintain certain other named roads. Like — 164 — wise, chapter 301, the costs to be defrayed by an annual tax not exceeding two mills, and chapter 302, touching Eighteenth street, required the expenditure of the proper proportion of the tax levied by the act of 1899. Substantially similar were chapters 305 to chapter 315, inclusive. The legislature of 1909 enacted chapter 197, requiring township boards to designate such roads as in their judgment should be known as drag roads, and to divide such roads into sections as would best carry out the purpose and provisions of the act. Also, chapter 198, relating to roads and highways, creating the office of engineer of highways and bridges, amending various provisions of the acts of 1905 and 1907, relating to the commissioners of highways, and the road-drag act of 1907, and repealing chapters 292 and 294, Laws of 1907, touching the duties of township road commissioners. This act required the county engineer to classify the roads of his county, designating them as county, township and local roads, according to their importance and the amount of travel— “And he shall see that the roads so classified be kept and maintained in condition in proportion to importance and amount of travel. The township highway commission shall classify the roads in their respective townships; . . .” (§2.) Section 4 amended section 1 of chapter 362 of the Laws of 1905, and provided that the township board— “Shall be and the same are hereby made commissioners of roads and highways of their respective townships, and all roads outside of incorporated cities shall be under the control of said commissioners of roads and highways, subject to the authority of the county engineer. . . .” Section 5 provided that all taxes assessed for the purpose of maintaining public roads and highways should be paid in cash and collected as provided for in relation to other taxes, and used exclusively for road purposes. Section 6: “The said commissioners of roads and 'highways shall have control and general supervision of all roads and highways in their respective townships, except that in counties having a county engineer such control shall be subject to the authority of the county engineer, as provided for in this act.” Section 9: “For the purpose of carrying out the provisions of this act the commissioners of roads and highways shall recommend to the county commissioners of each county in this state, ... a levy of not more than;one mill on the dollar . . . and it shall be the duty of the county clerk to place such levy — 165 — on the tax-rolls of said county: Provided, That at least seventy-five per cent of all moneys collected from the taxable property in each road district, including cities of the third class, shall be used to improve the roads within such district,” Chapter 201 of the Laws of 1909, providing for the maintenance of country roads, authorized the county commissioners upon a certain petition to cause a country road to be improved as prayed for, such petition to be signed by sixty per cent of the landowners along the line of any regularly laid out road. Section 10 provided that all bridges and culverts costing more than $200 should be built by the county and paid for from the general fund or bridge fund. The legislature of 1911 enacted chapter 248, another general statute of fifty-six sections, covering the subject of roads and highways, and repealing various former enactments. Section 53 provided that no provision of that act should be construed to repeal or supersede any special act then in force in any county in this state. Chapter 254 authorized the county commissioners of any county having ninety thousand inhabitants or over, where county roads were macadamized out of funds raised by direct tax levy, to grade and macadamize roads leading to public buildings and connecting rock roads already constructed, the cost to be defrayed out of the macadam fund and not to exceed three thousand dollars a year. Section 3: “This act shall not be construed as repealing any laws now in existence except in so far as it directly conflicts with the provisions of this act, but it shall be supplementary to said chapter 276 of the Laws of Kansas for the year 1899 and all acts amendatory and supplemental thereto.” Chapter 255 amended section 3 of the act of 1899, and provided that the macadamizing of roads might be done in sections from time to time as there might be funds provided for that purpose, etc. Section 1, chapter 248, defined mail routes as “the free rural delivery mail routes within a municipal township,” and township roads, as “all roads within a township other than free rural delivery mail routes,” and county roads: “All roads designated as such by the board of county commissioners of a county connecting cities and market centers, whether both such cities or centers are within the county, or one is within and the other without the county.” Section 18 classified all roads as “state roads,” “county roads,” “mail routes,” and “township roads.” — 166 — “The ‘county roads’ shall be all roads designated as such by the board of county commissioners of a county. . : . Free delivery mail routes shall be known as ‘mail routes,’ and all other public highways within a township are ‘township roads.’ All county and state roads shall be maintained at the expense of the county, and all 'mail routes and township roads where they do not coincide with county and state roads at the expense of the township in which they are situated: Provided, That all roads designated as county roads under the provisions of chapter 198 of the Session Laws of 1909 and established as such at the time of taking effect of this act shall be and remain county roads and shall be' maintained under the provisions of this act.” Section 19: “All mail routes and township roads shall be under the control of said board of commissioners of highways.” Section 23: “That the highway commissioner shall have charge of the mail routes, township roads and township bridges of their respective townships, and it shall be their duty to keep the same in repair, and to improve them so far as practicable.” Section 32 provided that the taxes assessed for the purpose of constructing and maintaining public roads should be paid in cash, and the county treasurer should pay that proportion of the same which should be used upon mail routes and township roads or upon city streets to the treasurer of the township or city from which said taxes were collected, to be used exclusively for such road purposes. Section 40 made it the duty of the township trustee to remove all obstructions at least once a year, at such times as the county commissioners might direct, from all public roads and highways in his township. Section 41: “That if at any time any highway shall be obstructed or become impassable, or any bridge shall be impaired so as to be unsafe, it shall bo the duty of the township trustee of the township in which such obstruction, impassable road or impaired bridge may be situated, to cause such obstruction to be removed or such road or bridge to be repaired forthwith.” In 1913, the legislature enacted chapter 262, supplemental and amendatory to chapter 276 of the Laws of 1899, requiring the county board to expend therefor the proportion of the taxes authorized by the act of 1899. The legislature of 1915 passed chapter 186, similar to those already mentioned, made the act supplemental to that of 1899; also, chapter 290 amending section 19 of chapter 249 of the act of 1911, making the township board the auditing board for their respective — 167 — townships. “All mail routes and township roads shall be under the control of said board of commissioners of highways.” Counties and townships are mere creatures of the legislature. (Constitution, art. 9; Gen. Stat. 1915, ch. 25, art. 2, § 2562, ch. 117, art. 1.) The legislature has the power to abolish counties and county organizations. (Division of Howard Co., 15 Kan. 195.) The legislature has plenary power over roads and highways. It may establish a state road and cast the cost on the county in which the road lies without any vote of the inhabitants. (The State, ex rel., v. Comm’rs of Shawnee Co., 28 Kan. 431.) It was contended in that case that the legislature had no authority to establish a state ro'ad and compel Shawnee county to pay for it, but it was said by Brewer, J., that this was done in forty-two instances by chapter 70 of the Laws of 1861. It was also said that it is not like compelling a county to take stock in a railroad corporation; while a road is open to the use of all citizens, it is yet of special value and benefit to the county upon which the burden of its cost is cast. “It is not like an attempt to tax the citizens of Topeka with the cost of improving the streets of Lawrence. It simply casts upon the counties of Shawnee and Jefferson the cost of roads wholly within their territorial limits, and it is making each county bear the burden of public improvements within such limits. . . .We know of no reason why the legislature might not pass an act declaring all highways state roads, and place the management and control of them in commissions appointed directly by the state; and yet if such an act were passed, the special value and benefit of each road to the community in which it is located would be unchanged.” (pp. 433, 434.) Speaking of counties it was said: “They are political organizations, whose powers and duties are within the control of the legislature. That body defines the limits of their powers, and prescribes what they must and what they must not do. It may prescribe the amount of taxes which each shall levy, and to what public purpose each shall devote the moneys thus obtained. It may require one county to build a certain number of bridges at certain specified places, and of a particular size and quality. It may require another to open roads in given localities; and another to build a courthouse and to levy a tax to a prescribed amount for the purpose of paying therefor. In short, as a general proposition, all the powers and duties of a county are subject to legislative control; and provided the purpose be a public one, and a special benefit to the county, it may direct the appropriation of the county funds therefor in such manner and to such amount as it shall deem best.” (p. 434.) In Wulf v. Kansas City, 77 Kan. 358, 94 Pac. 207, holding that a city may be required by legislative act to establish parks and boulevards and pay the expenses therefor, it was said that— — 168 — “Whatever view may be taken of those concerns of cities which are mainly private or proprietary in their nature, in matters in which the state has an interest, and which, as we have seen, are undoubtedly subject to the sovereign control of the state, the state may interfere at will with the local bodies, and may compel the local community to tax itself in order to carry out the obligations imposed upon it by the state.” (p. 374.) The State v. Lawrence, 79 Kan. 234, 257, 100 Pac. 485, quoted from the case of In re Dalton, 61 Kan. 257, 59 Pac. 336: “ ‘Indeed, everything relating to the management of counties, cities and townships not defined and limited by the constitution, may be taken away by the state acting through its legislature, and as to these political divisions and their agents the legislature has the same power that it possesses over state officers.’ (p. 264.)” (p. 257.) Further: “The state is the sovereign power, and cities, towns and all other municipalities are its subsidiary agencies for governmental purposes, ... It may well be that the state has the power, if necessity should arise, to require a city to erect a bridge or to construct a road, or to assume a part of the burden of the cost thereof, and that the form of the legislative act would not affect its validity. ... It is true that streets, roads and bridges are subjects of public interest and of state-wide concern, but more truly speaking.they are local in character.” (pp. 257, 258.) In City of Emporia v. Griffith, 86 Kan. 976, 122 Pac. 1053, it was held that a county has the right to tax for the purpose of maintaining county roads under the act of 1911, which is to be expended under the direction of county officers, and that the officers of a city within such county are not entitled to the possession of any portion of the fund and have no control thereof. Near the conclusion of the opinion it was said: ' “It is competent for the legislature to give the control of the highways of the county, including the streets of cities, to any of its subordinate agencies. It may exercise the power directly or confer it upon county officers, or it may allow the officers of cities and townships to share in the control.” (p. 980. See, also, Kansas City v. Stewart, 90 Kan. 846, 136 Pac. 241; Jefferson County v. Drainage District, 97 Kan. 302, 155 Pac. 54; Washburn v. Shawnee County, 103 Kan. 169, 172 Pac. 997; Albright v. Douglas County, 108 Kan. 184, 194 Pac. 913.) The foregoing sufficiently shows that the legislature is not restricted, but in a general way is free to provide much as it sees fit respecting roads and highways. Of course, it can take certain municipalities and roads out from the general category, and can impose damages for defects on whatever quasi municipality it deems proper. — 169 — Let us examine the act of 1887 and see what the legislative intent evidenced thereby is. “An act making counties and townships liable for defects in bridges, culverts and highways in certain cases.” Section 1: “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.” It must be conceded that the wording is such that interpretation is necessary. It is clear, however, that the subject indicated by the title is the liability of counties and townships for defects in bridges, culverts and highways. It is equally clear that in case of county liability it is required that the chairman of the board must have had five days’ notice of the defect, and in case of township liability, the trustee must have had such notice. Also, that the damage is to be recovered from the “county or township wherein such defective bridge, culvert or highway is located.” Of course, if either were in a given township it would necessarily be within a county, The ambiguity comes from the language— “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 in other cases such recovery may be from the township. . . The court holds that the intent was and the meaning is that in cases in which the township has no duty to keep in repair, or to maintain, no liability was to be attached, whatever the defect. Also, that while the duty under the road legislation rests generally on the township to keep the roads safe and in repair, the Wyandotte county legislation, in 1899 and since, evidences the manifest intent to take this Leavenworth road out from the operation of such general duty and consequent responsibility. The repeated provisions that the county should improve and maintain.mean that such improvement and maintenance were thereby removed from the burden of the — 170 — township, and that being thus expressly relieved of the duty and burden, the township was by clear implication to be also relieved from liability for defects in a road over which it had no control and in respect to which it owed no duty. It seems unnatural that with the subject thus expressed in the title, and the purpose to permit damages to be recovered by those injured by highway defects, the lawmakers would wittingly have restricted recovery from a county to the single case of a bridge partially or wholly constructed by it. It appears to the court more reasonable and more in accord with the probabilities to construe the act as permitting recovery from the municipality which by subsequent legislation had been given the task of construction, maintenance and control. Otherwise, in this instance, the township, which neither constructed nor maintained the road, must respond in damages for a defect in a road which it was the duty of the county to construct and which it is its duty to maintain. There is something incongruous in the notion that the taxpayers of one township should be required to make an injured traveler whole when the entire county owed him the duty to maintain the highway and by natural, if not imperatively necessary implication, keep it safe for travel. It is therefore held that the township is not liable, and the judgment is reversed and the cause remanded with directions to enter judgment for the defendant township. In the companion cases, Nos. 22,142 and 22,143, against the county, demurrers to the petition were sustained. By reason of the foregoing this ruling is reversed, and those cases are remanded for further proceedings. Johnston, C. J., and Justices Porter and Dawson concur in the result.