The opinion of the Court was delivered by
Mr. Justice Hydrick.
We are satisfied with the reasoning upon which the Circuit Court reached the conclusion that this action cannot be maintained under section 3053, Civil Code 1912; and we would not attempt to add anything to the opinion of the learned Judge on that point, but for the contention of appellant that this action falls within the principle upon which this Court rested its decision in the case of
Mayrant v. Columbia,
77 S. C. 281, 57 S. E. 857, 10 R. R. A. (N. S.) 1094. That case seems to have been overlooked by the Circuit Court. At any rate, it was not referred to in the opinion.
Only by a strained process of reasoning can it be said that this case is not within the ground upon which the decision in the Mayrant case was rested. Nevertheless, it does not follow that the decision of the Circuit Court in this case was wrong; for, though the decision in the Mayrant case was right, it was not put upon the right ground. In the Mayrant case the wrong was alleged to have been caused by negligence in raising the level of the street, closing up the existing surface drains, and so negligently installing drain pipes of insufficient size and fall to carry off the surface
water (which had theretofore been carried off by the surface drains) that it was thrown and ponded upon plaintiff’s lot. In this case, the negligence alleged consists in failing to drain the surface water off the street, and thereby allowing a cesspool to be created and remain in the street which caused plaintiff’s sickness. In neither case was the injury caused by any defect in the street which interfered with or affected the use of it for legitimate street purposes, so as to bring it within the ground of decision in
Hutchison v. Summerville,
66 S. C. 448, 45 S. E. 8;
Duncan v. Greenville,
71 S. C. 170, 50 S. E. 776;
Irvine v. Greenwood, 72
S. E. 228;
Stone v. Florence,
78 S. E. 23;
Creps v. Columbia,
104 S. C. 372, 89 S. E. 316;
Burnett v. Greenville,
91 S. E. 203, and
Sexton v. Rock Hill,
93 S. E. 180; nor was it caused by mismanagement, of something under the control of the corporation while being used in the work of repairing the streets, so as to bring it within the ground of decision in
Barksdale v. Laurens
(the steam roller case), 58 S. C. 413, 36 S. E. 661, or
Strait v. Rock Hill,
104 S. C. 116, 88 S. E. 469 (the rock crusher case).
The case of Mayrant stands alone. It cannot be brought within the ground of decision of any óf our previous cases, in all af which the right to bring the actions was held to be given by the statute, as it was interpreted in
Dunn v. Barnwell,
43 S. C. 401, 21 S. E. 315, 49 Am. St. Rep. 843, an interpretation which has been expressly recognized and followed in every subsequent decision except the Mayrant case. By reference to the opinion of the.late Chief Justice Pope in the Mayrant case, it will be seen that he does not attempt to show that it falls within the statute, as interpreted in
Dunn v. Barnwell,
43 S. C. 401, 21 S. E. 315, 49 Am. St. Rep. 843, or any previous decision of this Court. On the contrary, he relies entirely upon the authority of text-writers and decisions of other Courts.
Now the rule of decision in this Court is exceptional with regard to actions against municipal corporations for tort in
at least twu important particulars, both of which seem to have been overlooked by the learned Chief Justice,'as will clearly appear from a consideration of the quotations found in his opinions. In the first place, the Courts of most other States hold that such corporations are liable under the common law for certain kinds of torts, while this Court has uniformly denied such liability, and held that no action for tort can be maintained against them unless it is expressly authorized by statute; the reason being that in the performance of their functions they are mere agencies-of the State for governmental purposes, and the State cannot be sued without its consent. In the second place, the Courts of most other States recognize a distinction between what are called governmental, and corporate or ministerial, functions in such corporations, while this Court has expressly rejected that distinction, and held that all the powers conferred upon such corporations are to be exercised as governmental powers.
Irvine v. Greenwood,
89 S. C. 511, 72 S. E. 228, 36 L. R. A. (N. S.) 363. Therefore, if we follow our previous decisions construing section 3053, the conclusion is inevitable that the decision in the Mayrant case was rested upon an untenable ground. It might have been rested upon the authority of the act of 1902, entitled “An act to require municipalities to provide drains for surface water.” 23 Stat. 1038. That act is quoted in the opinion as section 2010a of the Civil Code of 1902, though it does not appear in the body of that Code, but now appears as section 3026 of the Civil Code of 1912. The decision might also have been rested upon the principal upon which the decision of this Court in
Hopkins v. Clemson College,
77 S. C. 12, 57 S. E. 551, was reversed by the Supreme Court of the United States, 221 U. S. 636, 31 Sup. Ct. 654, 55 L. Ed. 890, 35 L. R. A. (N. S.) 243, in which liability was imposed on the ground that the diversion of the waters of Seneca River
upon the plaintiff’s land was tantamount to. a taking thereof without compensation. See the consideration of that ground in
Irvine v. Greenwood.
Where an individual has suffered injury as the result of a wrong done, natural justice calls for some remedy, and the Courts have ever been alert to provide one; hence the boast of the law,, which is often pressed upon the attention of Courts, that for every wrong there is a remedy. But there is another axiom of practical wisdom equally important to be observed--hard cases make bad laws. Not infrequently the hardship of a particular case leads to the strained, if not incorrect, application of sound principles to fit the facts, so as to afford a remedey; and, when the same principles are invoked in similar cases, it is discovered that they lead to results that are exceedingly inconvenient, if not so illogical that they cannot be justified on settled principles of legal liability. And the consequence is that the previous decision must be distinguished, modified or overruled.
1
The Courts are not invested with the power to make laws. They should and do keep pace with the progress and devel • opment of society by the application of settled principles to new relations and conditions, but in doing this the point is sometimes reached when the power of the Court ends and the duty of the legislator begins.
2
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The opinion of the Court was delivered by
Mr. Justice Hydrick.
We are satisfied with the reasoning upon which the Circuit Court reached the conclusion that this action cannot be maintained under section 3053, Civil Code 1912; and we would not attempt to add anything to the opinion of the learned Judge on that point, but for the contention of appellant that this action falls within the principle upon which this Court rested its decision in the case of
Mayrant v. Columbia,
77 S. C. 281, 57 S. E. 857, 10 R. R. A. (N. S.) 1094. That case seems to have been overlooked by the Circuit Court. At any rate, it was not referred to in the opinion.
Only by a strained process of reasoning can it be said that this case is not within the ground upon which the decision in the Mayrant case was rested. Nevertheless, it does not follow that the decision of the Circuit Court in this case was wrong; for, though the decision in the Mayrant case was right, it was not put upon the right ground. In the Mayrant case the wrong was alleged to have been caused by negligence in raising the level of the street, closing up the existing surface drains, and so negligently installing drain pipes of insufficient size and fall to carry off the surface
water (which had theretofore been carried off by the surface drains) that it was thrown and ponded upon plaintiff’s lot. In this case, the negligence alleged consists in failing to drain the surface water off the street, and thereby allowing a cesspool to be created and remain in the street which caused plaintiff’s sickness. In neither case was the injury caused by any defect in the street which interfered with or affected the use of it for legitimate street purposes, so as to bring it within the ground of decision in
Hutchison v. Summerville,
66 S. C. 448, 45 S. E. 8;
Duncan v. Greenville,
71 S. C. 170, 50 S. E. 776;
Irvine v. Greenwood, 72
S. E. 228;
Stone v. Florence,
78 S. E. 23;
Creps v. Columbia,
104 S. C. 372, 89 S. E. 316;
Burnett v. Greenville,
91 S. E. 203, and
Sexton v. Rock Hill,
93 S. E. 180; nor was it caused by mismanagement, of something under the control of the corporation while being used in the work of repairing the streets, so as to bring it within the ground of decision in
Barksdale v. Laurens
(the steam roller case), 58 S. C. 413, 36 S. E. 661, or
Strait v. Rock Hill,
104 S. C. 116, 88 S. E. 469 (the rock crusher case).
The case of Mayrant stands alone. It cannot be brought within the ground of decision of any óf our previous cases, in all af which the right to bring the actions was held to be given by the statute, as it was interpreted in
Dunn v. Barnwell,
43 S. C. 401, 21 S. E. 315, 49 Am. St. Rep. 843, an interpretation which has been expressly recognized and followed in every subsequent decision except the Mayrant case. By reference to the opinion of the.late Chief Justice Pope in the Mayrant case, it will be seen that he does not attempt to show that it falls within the statute, as interpreted in
Dunn v. Barnwell,
43 S. C. 401, 21 S. E. 315, 49 Am. St. Rep. 843, or any previous decision of this Court. On the contrary, he relies entirely upon the authority of text-writers and decisions of other Courts.
Now the rule of decision in this Court is exceptional with regard to actions against municipal corporations for tort in
at least twu important particulars, both of which seem to have been overlooked by the learned Chief Justice,'as will clearly appear from a consideration of the quotations found in his opinions. In the first place, the Courts of most other States hold that such corporations are liable under the common law for certain kinds of torts, while this Court has uniformly denied such liability, and held that no action for tort can be maintained against them unless it is expressly authorized by statute; the reason being that in the performance of their functions they are mere agencies-of the State for governmental purposes, and the State cannot be sued without its consent. In the second place, the Courts of most other States recognize a distinction between what are called governmental, and corporate or ministerial, functions in such corporations, while this Court has expressly rejected that distinction, and held that all the powers conferred upon such corporations are to be exercised as governmental powers.
Irvine v. Greenwood,
89 S. C. 511, 72 S. E. 228, 36 L. R. A. (N. S.) 363. Therefore, if we follow our previous decisions construing section 3053, the conclusion is inevitable that the decision in the Mayrant case was rested upon an untenable ground. It might have been rested upon the authority of the act of 1902, entitled “An act to require municipalities to provide drains for surface water.” 23 Stat. 1038. That act is quoted in the opinion as section 2010a of the Civil Code of 1902, though it does not appear in the body of that Code, but now appears as section 3026 of the Civil Code of 1912. The decision might also have been rested upon the principal upon which the decision of this Court in
Hopkins v. Clemson College,
77 S. C. 12, 57 S. E. 551, was reversed by the Supreme Court of the United States, 221 U. S. 636, 31 Sup. Ct. 654, 55 L. Ed. 890, 35 L. R. A. (N. S.) 243, in which liability was imposed on the ground that the diversion of the waters of Seneca River
upon the plaintiff’s land was tantamount to. a taking thereof without compensation. See the consideration of that ground in
Irvine v. Greenwood.
Where an individual has suffered injury as the result of a wrong done, natural justice calls for some remedy, and the Courts have ever been alert to provide one; hence the boast of the law,, which is often pressed upon the attention of Courts, that for every wrong there is a remedy. But there is another axiom of practical wisdom equally important to be observed--hard cases make bad laws. Not infrequently the hardship of a particular case leads to the strained, if not incorrect, application of sound principles to fit the facts, so as to afford a remedey; and, when the same principles are invoked in similar cases, it is discovered that they lead to results that are exceedingly inconvenient, if not so illogical that they cannot be justified on settled principles of legal liability. And the consequence is that the previous decision must be distinguished, modified or overruled.
1
The Courts are not invested with the power to make laws. They should and do keep pace with the progress and devel • opment of society by the application of settled principles to new relations and conditions, but in doing this the point is sometimes reached when the power of the Court ends and the duty of the legislator begins.
2
If the plaintiff, who has been injured by disease, super-induced by the negligence of defendant, can maintain her action for damages, why may not every other member of the family, or of the community, or, indeed, of the entirel city, who has suffered a like injury from a like cause, maintain such an action? The fact that the exciting cause of the disease was in a street, and the result of negligence in failing to keep it in proper repair, is an immaterial incident. The consequences would have been the same if the nuisance has been created or allowed to exist
on a private lot Upon what principle could the Court justify the allowance of the action in one case and deny it in the other?
A moment’s reflection will disclose innumerable evils that would result from the allowance of such an action. Municipalities, the agencids of government, would become liable for epidemics of typhoid fever and other diseases caused, actually or supposedly, by negligence in water supplied to the people, the disposition of sewage and refuse matter, and on other grounds which will readily be suggested. The floodgates of litigation would be thrown wide open, and the funds that are raised by taxation for public improvements would be dissipated in tort suits. Such liability could not be sustained under the principles of the common law; and it is perfectly clear that it was never contemplated by the legislature in the enactment of section 3053.
Judgment affirmed.
Messrs. Justices Watts, Fraser and Gage concur.
Mr. Ci-iiee Justice Gary did not sit in this case.