Lapas attēli
PDF
ePub

neaux should locate the center line of the road. Some correspondence followed, Molyneaux writing plaintiff as follows:

[ocr errors]

September 28, Grand Haven Road Del. No. 1. “Mr. HOEK.

"Dear Sir: I was at your place today. I did not find any one home. I should have been there before, but I did not get your letter on account of being directed to the post office instead of R. F. D. I think if you know about where the center of the road is it will be all right to plow it up. I think the sooner it is plowed and graded up, the better.

"Yours truly,

"A. L. MOLYNEAUX, H. C."

At a subsequent interview with Molyneaux the following occurred, according to plaintiff's testimony:

"After I received this letter, Mr. Pott came to see me again. He said, 'I see that Mr. Molyneaux has not straightened out the road yet.' He said that he couldn't go on with it; he couldn't let me do my work because it was not straightened. By that he meant that he wanted to know where the center of it was. After that I went to see Mr. Molyneaux again. He told me he would come down and straighten it out, and he did come down about three weeks after I received this letter from him. It was after grape picking time. I don't remember the date. I am sure it was three weeks after this. When he came down we got a couple of stakes, he held the stakes and I drove them down, and straightened it out. We commenced at the north end of the house. One stake was opposite my house. We did not go to the south, where the east and west road is. We can see it plainly from our house because it is on a knoll, and we can look from the house towards the river and also the other way. We drove one stake north of the house, and west, and the other stake opposite the house. We found the old bed of the road, the middle of the road. There were not any fences there to go by. The fences were towards the river. We could find the middle of the road. There were not any stakes towards the south and where the east and west road run. There was a big soft maple tree that had always been there in the center as long as I lived there. We took that for the center. Mr. Molyneaux helped me drive

these stakes. He told me to plow it up now, and that no matter what Schmidt said he would stand by me. I do not know whether he had any talk with Schmidt or not. My wife was there at the time. She said, 'I suppose

when Schmidt sees these stakes there will be more trouble.' Mr. Molyneaux said: 'Never mind Schmidt; I told Mr. Hoek to plow it up; he better plow it up and I would stand back of him.' I did plow some of it up that fall and finished it in the year 1907-March 28th or 29thjust as soon as the frost went out. I do not know whother Molyneaux came to see the job after it was done or not. I asked him for an order, and he gave me one for $4 for my work on that road-the order drawn on the township treasurer. When I did this work under the instructions of Mr. Molyneaux I certainly thought that I had a right to do it. I was sure that I was working in the center of the highway. Mr. Molyneaux acted as though he thought that we were in the middle of the highway. Mr. Molyneaux did not know that I was getting over into Schmidt's rye. I did not think that I was on Schmidt's land. I was pretty sure that I was not on his land, and I acted in good faith."

Upon the foregoing statement of facts the plaintiff claims that both Molyneaux and the township are liable. There is some testimony of conversations between the plaintiff and some of the township officers, but we think it unnecessary to refer to it further as it in no way tends to establish a liability on the part of the township. The case is therefore reduced to a few legal questions.

1. Liability of the Township. Nothing is better settled in this State than the principle that a quasi municipal corporation is not liable for the action of officers (though elected by the township) who perform a purely State function imposed upon them by law, whether the action is for negligence or trespass, although an action may in many cases lie against the officer personally. Such was the law of England and is of this country as the following authorities show:

In Commissioners of Highways of Niles Township, v. Martin, 4 Mich. 557 (69 Am. Dec. 333), after adverting to the English rule, this court said, in an opinion

written by the late Judge DOUGLASS, a lawyer of great learning:

"Towns, with us, are mere political organizations, created wholly by statute for certain purposes of local government. They are vested with no franchises or special privileges for their own benefit. They have only such powers as the statute confers, and are subject to no obligations, except such as are derived from statutory provisions. It is difficult to see how any common-law obligations, the sole foundation of which is prescription and immemorial usage, can be made to attach to them. An obligation to construct and repair roads and bridges can only be derived from the possession of such powers over their construction and repair as the statute has conferred upon them. And the law will not impose an unqualified obligation, where the means of performing it do not exist. Now, the towns have power to choose commissioners of highways, but the statute, in express terms, gives to these commissioners, when elected, the care and superintendence of the highways and bridges of the town, and confers upon them all the powers requisite for the execution of their trust. They are in no way responsible to the town, but are themselves a species of quasi corporation, with power to sue and be sued; having legal succession, and deriving their authority, not through the town, but directly from the statute. The towns have no power to give the slightest direction or instruction to these officers, as to the performance of their duties. So the towns have power to raise money for constructing and repairing roads and bridges, but this power is limited to the raising of only $250 in any one year (Rev. Stat. 1846, chap. 22, § 4), and can only be exercised at the annual township meeting. So highway labor may be annually assessed upon persons and property within the township, but the amount to be assessed in any one year is limited (Rev. Stat. 1846, chap. 23, §§ 4, 5), and the power to assess is vested exclusively in the commissioners of highways. Further, the power to raise money for the construction of bridges is vested, in part, in the boards of supervisors of the counties (Rev. Stat. 1846, chap. 27). Looking at all the statutory provisions on the subject, we think they furnish no ground for the inference that it was intended that townships should be subject to any such broad and onerous obligation as is contended for."

Authorities are cited. After alluding to the distinction that exists when municipal corporations proper are sued, Judge DOUGLASS adds:

"But the cases which have gone furthest in this direction distinctly assert that no such liability exists on the part of those minor political organizations, or quasi corporations, such as towns and counties, whose corporate powers and functions are conferred without their solicitation for the benefit, not of themselves, but of the public at large. In Hickok v. Trustees of the Village of Plattsburgh [15 Barb. 427], the New York court of appeals, after a review of the authorities, say that it is the acceptance of a special charter that makes the incorporated body liable to this action, and it is the want of such a charter that exempts the towns, unless they are especially made liable by statute under certain circumstances as in Massachusetts."

This case was followed in Township of Leoni v. Taylor, 20 Mich. 148, where the late Mr. Justice GRAVES, referring to Commissioners of Highways of Niles Township v. Martin, supra, said:

"It is true that the action was there brought against the highway commissioners, but a proper disposition of the case made it necessary for the court to consider with some minuteness the powers, duties, and responsibilities of townships touching highways and bridges, and it was there held that under our system of township organization and management, the care and superintendence of the highways and bridges of the towns was given to the highway commissioners, together with all the powers requisite to the execution of their trust,' and that the 'towns had no power to give the slightest direction or instruction to such officers as to the performance of their duties,' and it was also declared that the law would not impose an unqualified obligation when the means of performing it did not exist.' We think it was fully established in that case that the townships were subject to no legal duty or obligation to overlook or repair the roads and bridges within their limits, and that whatever duty the law had cast upon commissioners and overseers in that particular, the failure to perform it could furnish no cause of action against the townships."

161 MICH.-87.

See opinion of CAMPBELL, C. J., in People v. Hurlbut, 24 Mich., at page 80 et seq., and of CooLEY, J., at page 102 et seq. (9 Am. Rep. 103). He said:

"For those classes of officers whose duties are general -such as the judges, the officers of militia, the superintendents of police, of quarantine, and of ports, by whatever name called-provision has to a greater or less extent been made by State appointment. But these are more properly State than local officers; they perform duties for the State in localities, as collectors of internal revenue do for the general government; and a local authority for their appointment does not make them local officers when the nature of their duties is essentially general. In the case before us, the officers in question involve the custody, care, management and control of the pavements, sewers, waterworks and public buildings of the city, and the duties are purely local. The State at large may have an indirect interest in an intelligent, honest, upright and prompt discharge of them, but this is on commercial and neighborhood grounds rather than political, and is not much greater or more direct than if the State line excluded the city. Conceding to the State the authority to shape the municipal organizations at its will, it would follow that a similar power of control might be exercised by the State as regards the property which the corporation has acquired, or the rights in the nature of property which have been conferred upon it. There are cases which assert such power, but they are opposed to what seem to me the best authorities, as well as the soundest reason. The municipality, as an agent of government, is one thing; the corporation, as an owner of property, is in some particulars to be regarded in a very different light."

Sheldon v. Village of Kalamazoo, 24 Mich. 383, a case relied on by plaintiff, was a case against a city, and is clearly distinguishable from the present case. A note to that case shows the distinction and cites many authorities both in Michigan and elsewhere. Dawson v. Township of Aurelius, 49 Mich. 479 (13 N. W. 824), applies the doctrine to a township drain commissioner, as also does the case of Camp v. Township of Algansee, 50 Mich. 4 (14 N. W. 672). See, also, Barron v. City of Detroit, 94 Mich. 601 (54 N. W. 273, 19 L. R. A. 452, 34

« iepriekšējāTurpināt »