The Hawaiian gazette., 1893-01-10

Ierent acts. Ii the contention OF
the defendants counsel is correct
that the word Sclaim" in Section :
Is explained by the more explicit
statement of causes of action in Sec
ton lit would not thereby appear
that actions OF tort were excluded, q;
the right of action ito collect or re-
cover any money" = "or to en-
force any other right" might well be
held TO include actions of tort fol-
damages.
But we take the ground that the
word claim" Is not only one of 6
very broad meaning, but there is
nothing in the statute to show that il
is not intended to be used in Its
brosiest sense. Nor is there sny.
thing TO suggest that the Legislature
meant to confne its application to
causes of action arising from con
tracts; on the contrary, the words in
the next section-~any contract or
any act of any government officer
referring to allowance of process by
the Justices of the Supreme Court,
are strong evidence OF the definite
intention of the Legislature to in
clude claims arising from torts as
well as contracts among the causes
of action that may be brought
against the government.
Lord Coke said THAT the word
demand is the largest word in law
except claim" Is BAG. Abr. 2S3.)
We are already accustomed to the
use of the word eldim as a verb in
our statute in actions of tort. civil
Code, Sec. 1116.l
The Act of Congress of March Sd,
1887, defining the jurisdiction Of the
United States Court of Claims, de-
fnitely excluded actions founded IN
tort in the following words: All
claims founded upon the Constitu-
ton of the United States or any law
of Congress, except for pensions, or
upon any regulation Of an executive
department. or upon any contract.
expressed or implied with the Gov
eminent of the United States, or for
damages, iquidated or unliquidated
in cases not sounding in tort" etc
Notes Rev. Stat. q. S. 354) If such
actions had not been thus specifically
excluded they would have been in
Guided by the general words.
We iud that right of action
against the government for tort is
given by the statute of 1888 referred
to.
1t is interesting to note in this con-
nection that no other sovereign state
has lever held itself liable to indi-
viduals for the misfesssnce, laches or
exercise Of power by its
officers and agents" Miller, j., in
Gibbons vs.. United States, s Wall,
269)
The defendant made the further
point in the argument, that the |
Is not responsible for |
the acts of the Road Supervisor or
those which may be done under his
on the ground that he is
not an agent of the government.
We know of no basis for such a
At the time the alleged |
damages happened, the streets of
were under the charge of q
Road Supervisor subject TO the direc-
ion and control OF the Minister of
who had the power of his
appointment and removal laws of
1851. Chap. 9, Sec 12). The circum-
itance that the appointment is by
he minister does not make the SUI
oervisor his private servant or agent,
lie being required by law to make
he appointment. The state holds
IS highways in trust for the public.
improvements made by its direction
II by its authority are its acts. and
he ultimate responsibility, of
curse, should rest upon it." (Transp.
%. vs. Chicago, SO .. S. 641). Tue
Road Supervisor under the Act of
SS7 was distinctly a State officer
nd agent, and the state is response (
lie for those of his acts which are
one in the scope of his authority.
The defendant further contends {
nat even If it is conceded that the !
overnment is liable generally for the
cts Of its agents. and that the Road I
was its agent, it is not
able under the evidence in this case.
! that, it is not liable for a mistake '
judgment of its agents whereby i
liury is caused, or for injuries from t
orm water csused by a change of t
rade of streets, or for not providing c
Efficient drains for carrying off ey- t
optional quantities of storm water. v
1t appears from the evidence, that T
part of the betting and machinery a
the plaintiffs planning mill. was i
allow the floor in kind of basement
cellar which was lower than Ala {
. street at that place; makai of b
sintif9s lot and adjoining it was an c
es which was also lower than the ?
rect, and which was continuous p
it'll the low part of his lot The n
dewalk had the effect of a dam TO
event storm water from flowing G
ON the street TO these lower places. p
uring g storm BY which the street P
Is flooded, the defendants agents P
It trenches through the sidewalk so u