#### Robinson, Appellee, *v.*Swing et al., Board of Commissioners of Hamilton County, Appellants.

(No. 5904

Decided May 26, 1939.)

*Mr. John M. Renner*and *Mr. Maurice W. Jacobs,*for appellee.

*Mr. Carl W. Rich, Mr. Walter M. Loche*and *Mr. I. Jach Martin,*for appellants.

Ross, J.

This is an appeal on questions of law from .a judgment of the Court of Common Pleas of Hamilton county, entered upon a verdict in favor of the plaintiff.

*84The action was initiated to recover compensation for damages to the plaintiff who was a passenger in an automobile. This vehicle was being driven over a road in an alleged subdivision known as College Hill Gardens, which is located within three miles from the boundaries of the city of Cincinnati.

The surface of this so-called road for some 150 feet south of Van Zandt road is concrete, the next five hundred feet is macadam, and thereafter, the surface for several hundred feet is cinders.

The automobile in which the plaintiff was a passenger was driven from Van Zandt road southwardly over the concrete, the macadam, and for some distance over the cinders, when it went into a depression caused by a ditch extending entirely across the cinder road. The plaintiff was injured when the automobile went into the depression. This occurred at 7:4o p. m., June 28, 1933.

The defendants in this action are the county commissioners of Hamilton county. The plaintiff may not succeed against them unless the area in which the injuries were received was by statute placed under their jurisdiction and control and liability for negligence, that is, tort liability of the county so definitely established.

The so-called road is a platted street in the subdivision mentioned. This plat was presented to the planning commission of the city of Cincinnati and approved by that body. It was then filed with the recorder of Hamilton county.

It is the claim of the plaintiff that these facts are sufficient to establish tort liability in the county of Hamilton.

There is no evidence in the record indicating that the county commissioners of the county of Hamilton ever had any actual knowledge of the existence of the *85so-called road, for failing to keep which, in repair the county is to be held liable.

It is true that the plat was filed with an officer of the county — its county recorder — but is this notice to the county commissioners ?

It is also true that sufficient time elapsed from the filing of the plat (if responsibility then attached) on August 14, 1930, until the time of the mishap on June 28, 1933, to establish constructive notice in the county.

The first question presented is really simple. Do the statutes of the state of Ohio attach tort liability upon the county for negligence in failing to ‘ ‘ repair ’ ’ the so-called road in question? If there is no such statutory liability, there is no tort liability, for the injuries of which complaint is made in this action. In *Board of County Commrs.*v. *Darst,*96 Ohio St., 163, at page 166, 117 N. E., 166, the court states:

“The following legal principles have been established by the decisions of this court: That the board of county commissioners are not liable at common law in their qaasi-corporate capacity for damages resulting from negligence in the performance of their official duties; that in order to impose such liability for failure to perform official functions of this character, the state, by legislative enactment, must fix the terms and the measure of liability for official delinquencies; and, further, that statutes imposing such liability, being in derogation of the common law, are not to be extended beyond the plain meaning of their terms. *Commissioners of Hamilton County*v. *Mighels,*7 Ohio St., 110; *Commissioners of Morgan County*v. *The Marietta Transfer & Storage Co.,*75 Ohio St., 244, and *Ebert*v. *Commissioners of Pichaway County,*75 Ohio St., 474.

“In the interpretation of a statute seeking to impose a liability against the board, where it is sought to abrogate or modifv the common-law rule, the statu*86•tory terms must clearly import such intention, and, if •doubtful or ambiguous, should be resolved against its imposition.”

It is the claim of the plaintiff that, by virtue of the statute law of Ohio, an actual fee-simple title to the so-called road in question was vested in the county of Hamilton, and that the county became immediately liable to keep such road in repair. If this position is •correct, it obviously places upon the county commissioners ah onerous burden, and, certainly, any statute so providing should receive a strict, construction requiring that such liability be definitely arid unequivocally imposed with language leaving no possible doubt as to its clear meaning.

It is stated in the brief of appellee that:

“The subdividers of College Hill Gardens employed a statutory method which did not require the formal approval, acceptance, acquiescence or consent of the board of county commissioners. By virtue of this procedure Bobolink avenue became a county road absolutely independently of any act of the board of county commissioners.

“There is no doubt that the procedure used in dedicating Bobolink avenue was not to the liking of the board of county commissioners and its counsel. Perhaps too, it is not the most popular and frequently used method of dedicating roads to the county, but nevertheless it is a valid and clearly and well defined statutory proceeding. (General Code Sections 3580 to 3592 inclusive and 6906-1 which are fully discussed hereinafter.)”

The plaintiff relies upon Sections 3580 to 3592, General Code, to sustain his position.

Section 3580, General Code, provides for survey and platting of a subdivision.

Section 3583, General Code, provides:

*87“After the plat or map is completed, it shall he certified by the surveyor, and acknowledged by the owner or owners before an officer authorized to take the acknowledgment of deeds, who shall certify his official-act on the plat or map. If any owner is a nonresident of the state, his agent, authorized by writing, may make the acknowledgment. Such plat or map, and if the execution is by agent, his written authority, shall thereupon be recorded in the office of the county recorder. Provided, however, that no plat or map certifying lands outside of a municipal corporation, wherein the proprietor shall dedicate public highways, shall be entitled to be recorded without the approval thereon of the county commissioners of the county wherein such lands are situated, upon the filing of any such plat for record the approval of the county commissioners endorsed thereon shall operate as an acceptance- and confirmation of the dedication of the public highways, contained therein, except, however, that nothing herein contained shall be construed to apply to such-plats or maps as are required by Section 3586-1 of the-General Code to be approved by a city planning-commission.”

It will be noted that this section requires approval by the county commissioners endorsed on the plat, except where plats are required to be approved by a city planning commission under the provisions of Section 3586-1, General Code. The pertinent portion of this latter section is:

“ * * * but when a plan has been adopted as provided in this section the approval of plats provided for herein shall be in lieu of the approvals provided for by any other section or sections of the General Code, so far as territory within the approving jurisdiction of the planning commission, as provided in this section, is concerned. ’ ’

*88It is to be observed that this section provides, also, that when a city planning* commission has been duly constituted in a city, no plat of a subdivision of land (not in a village) within three miles of the corporate limits shall be recorded until it is approved by such planning commission.

That such jurisdiction is constitutional was held in the case of *Prudential Co-Operative Realty Co.*v. *City of Youngstown,*118 Ohio St., 201, 160 N. E., 695.

Now the evident intent of the concluding language of Section 3586-1, above quoted, as applied to the considered situation is to exclude from operation or effect upon such situation the terms of Section 3583, General Code.

The approval provided for by the city planning commission is “in lieu of” the approval of the county commissioners, provided for in Section 3583, General Code. It is contended that such being the case, when the approval of the city planning commission is secured, such approval “shall operate as an acceptance and confirmation of the dedication of the public highways” contained in the plat of the subdivision within the three-mile limit.

It seems clear, therefore, reading the two sections together and applying them to the facts in this case, that the approval of the planning* commission and filing the plat for record operated ‘ ‘ as an acceptance and confirmation of the dedication of” this road.

Section 3586-2, General Code, deals with the operation of a county planning commission, but territory within the three-mile limit of municipal corporate limits is excluded from the operation of Section 3586-2, by the exception, “other than land within a municipal corporation or land within three miles of a city as provided in Section 3586-1 of the General Code.”

*89Our attention is now directed to Section 3589, General Code, which provides:

“Such plats or maps shall be deemed in law a sufficient conveyance to vest fee simple of all such'parcels of land as are therein expressed, named, or intended for public use, in the county in which the village is situated, for the uses and purposes therein named, expressed or intended, and for no other use or purpose whatever.”

This section was originally paragraph 8 of an act to provide for the recording of town plats. 29 Ohio Laws, page 350.

The word “village” in Section 3589 has been substituted for the word “town” in the original act, which as the title indicates related to the laying out of a town and the dedication of the streets therein.

In order to have the application contended for by the plaintiff it is necessary to again substitute for the word “village,” city having a planning commission, which has adopted a plan for streets in territory within three miles of the corporate limits (Section 3586-1, General Code). Judicial power does not extend thus far, especially when guided by strict construction of statutes in derogation of the common law.

However, Section 6906-1, General Code, is directly in point. The gist of this section is that the road in question is “under the control and supervision of the board of commissioners of the county, ’ *’*and that means are provided for “the maintenance of the streets in such newly platted territory, until such time as such streets shall have been permanently improved.”

Our attention is directed by the defendants to Section 6886, General Code, which provides that persons may dedicate land for road purposes to the county with the approval of the county commissioners. No reference is made to the sections herein previously noted. There *90is nothing stated in this statute to indicate that it is exclusive or that other statutes providing for acceptance by the county of roads are rendered inoperative. This section must be read *in pari materia*with other sections having an equal application.

The defendants put great reliance upon the provisions of Section 2408, General Code, which are:

“The board of county commissioners may sue and be sued, plead and be impleaded in any court of judicature, bring, maintain and defend all suits in law or in equity, involving an injury to any public, state or •county road, bridge, ditch, drain or watercourse established by such board in its county, and for the prevention of injury thereto. The board shall be liable in its official capacity for damages received by reason of its negligence or carelessness in not keeping any such road or bridge in proper repair, and shall demand and receive, by suit or otherwise, any real estate or interest therein, legal or equitable, belonging to the county or .any money or other property due the county. The money so recovered shall be paid into the treasury of ■the county, and the board shall take the treasurer’s receipt'therefor and file it with the county auditor.”

This section of the Code appears in “Part First” entitled “Political,” under Title X entitled “Counties” .and Division II ‘ ‘ County Officers, ’ ’ Chapter 1, ‘ ‘ County Commissioners. ’ ’

The commissioners in their official capacity are made liable by Section 2408 for their negligence or carelessness “in not keeping any *s%ich roacl*or bridge in proper repair. ’ ’ A reading of the section indicates that ‘ ‘ such road” is any “public, state or county road, * * * . •established by such board.”

This is the only section of the Code imposing tort liability for negligence of the county commissioners for failure to keep roads in repair. The other sections *91hereinbefore noted could only impose such liability by inference which is not justified. *Weiher*v. *Phillips,*103 Ohio St., 249, 133 N. E., 67, *Riley*v. *McNicol et al., Bd. of County Commrs.,*109 Ohio St., 29, 141 N. E., 832. At page 33 of the opinion in the latter ease, the-court states:

“This court has on various occasions announced the principle that these county boards are not liable in their official capacity for negligent discharge of official duties, unless such liability is created by statute, and that ‘such liability shall not be extended beyond, the clear import of the terms of the statutes.’ *Weiher*v. *Phillips,*103 Ohio St., 249, 133 N. E., 67. In *Board of County Commrs. of Franklin County*v. *Darst,*96 Ohio St., 163, it is stated in the opinion, at page 167, 117 N. E., 166, at page 167, that the statutory terms, if doubtful or ambiguous, should be resolved against the-imposition of liability upon the board for official delinquencies.” See also, 11 Ohio Jurisprudence, 543, Section 270.

The question now presented is: Does the approval by the city planning commission, the recording of the-plat, and the fact that these matters under Sections 3583 and 3586-1, General Code, “operate as an acceptance and eonfinnance of the dedication” of the road,, amount to an establishing of the road as a county road' under Section 2408, General Code, thus creating tort, liability in the county commissioners for negligence in failing to repair the same?

What is meant by establishing a road as a county-highway? “Establish,” according to the Oxford English Dictionary means: “To fix, settle, institute, or ordain permanently — to set up on a secure basis, to-render stable or firm.”

The use of this term “establish” in the statute implies that some affirmative act on the part of the com*92missioners should intervene before liability is created. No such affirmative act on the part of the commissioners is provided for in the statutes upon which the plaintiff relies. The liability attaching therein, if it •existed, would be automatic, without any voluntary .action upon the part of the board. It would be imposed by law without the board’s consent. Such liability could be imposed, if effective language were used.

None of the cases, even those decided by Nisi Prius ■Courts, is of assistance in determining this question. All of them have been carefully examined. On the •contrary, other sections of the statutes seem to support the view that *implied*acceptance of a county road is not establishing it as a county road.

Section 7464, General Code, provides:

“The public highways of the state shall be divided into three classes, namely: State roads, county roads •and township roads.

“[a] State roads shall include the roads and highways on the state highway system.

“ [b] County roads shall include all roads which have been or may be established as a part of the county -system of roads as provided for under Sections 6965, •6966, 6967 and 6968 of the General Code, which shall be known as the county highway system, and all such roads shall be maintained by the county commissioners.

“[c] Township roads shall include all public highways of the state other than state or county roads as hereinbefore defined, and the trustees of each township shall maintain all such roads within their respective townships; and provided further, that the county ■commissioners shall have full power and authority to assist the township trustees in maintaining all such roads, but nothing herein shall prevent the township trustees from improving any road within their re*93spective townships, except as otherwise provided in this act.”

Section 6965, General Code, provides in part:

“There shall be created in each county within the state a system of county highways, which system shall be selected and determined in the following manner, to wit: * # *.”

And the remainder of such section and Sections 6966 and 6967, General Code, provide a definite means for establishing county highways. . These sections, generally speaking, provide that the county commissioners shall ascertain the desirability of locating county roads and that “such system of highways when selected and designated by the county commissioners in the manner herein prescribed shall be known as the system of county highways of said county, and all of the roads composing said system shall thereafter be known and designated as county roads. ’ ’ Section 6966, General Code. The section further provides that a map of such county roads shall be made and transmitted to the director of highways and that, if he is satisfied such roads have been properly selected, he shall approve the same and that ‘ ‘ the system of roads designated upon said map shall'thereupon become the system of county roads of said county,” which by reference back to Section 7464, General Code, “shall be maintained by the county commissioners.” However, it is only by virtue of Section 2408, General Code, that the county commissioners are held liable for negligence or carelessness in not keeping any such road or bridge in proper repair. Section 7464, General Code, in itself, would not be sufficient to impose such liability.

Section 6965 *et seq.,*General Code, were passed April 6, 1923, and were, therefore, in effect on June 28, 1933, when the injuries complained of were received.

Section 7464, General Code, as amended in 112 Ohio *94Laws, 496, was passed April 21, 1927, and was, therefore, also in effect.

The obvious purpose of these sections is'entirely in accord with reason and justice in requiring that in the absence of definite legislation, a county should not beheld automatically liable upon inferential acceptance of liability.

The judgment of the Court of Common Pleas is reversed and this court renders judgment for the defendants.

*Judgment reversed. .*

Matthews, P. J., and Hamilton, J., concur.