Eikenberry v. Township of Bazaar

22 Kan. 556

• Court: Supreme Court of Kansas
• Decided: July 15, 1879
• Status: Published

Opinion

The opinion of the court was delivered by

Horton, C. J.:

The principal question presented is, whether a township in this state is liable for injuries caused by unsafe or defective highways? In the absence of an express statute imposing the liability, the authorities uniformly hold that organizations, such as counties, townships, school districts, road districts, and the like, though possessing corporate capacity and power to levy taxes and raise money, have been considered not to be liable for neglect of public duty. The theory of these various decisions is in effect, that such organizations, though corporations, exist as such only for the purposes of the general political government of the state; that all the powers with which they are intrusted are the powers of the state, and all the duties with which they .are charged are the duties of the state; that in the performance of governmental duties, the' sovereign power is not amenable to individuals, and therefore these organizations are not liable at the common law for such neglect, and can only be made liable by statute. (Cooley on Torts, 622; Dillon on Mun. Corp., vol. 2, 761, 763; Town of Waltham v. Kemper, 55 Ill. 346; Comm’rs of Hamilton Co. v. Mighels, 7 Ohio St. 109.)

As our state has not adopted any statute expressly making ■townships liable for injuries on highways resulting from neglect of public duty, these organizations are not, under the authorities, liable in civil actions, for neglect in that regard.

Counsel for plaintiff in error cite the decisions of this court, that cities having power conferred upon them in reference to streets and sidewalks, which in some respects are similar to the powers granted townships, are liable for injuries resulting from failure to keep their streets and sidewalks in safe condition, and assert that, logically, the same doctrine should be applied to townships. Counsel fail to note the distinction between municipal corporations proper and quasi corporations. This distinction is pointed out and commented -on in Beach v. Leahy, 11 Kas. 23. Cities, towns and villages are municipal corporations proper, while counties, townships,, school districts and road districts are quasi corporations. The difference between these two classes of corporations is well established, and a principle applicable to the one class is-not necessarily applicable to the other.

The order and judgment of the district court will therefore be affirmed.

All the Justices concurring.