The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-05-11

ment- and the legal method through
which he receives his appointment is
immaterial.
Much discussion has been had in
the Coarts OF the United States res
pecting the liability of municipal
corporations and whether the acts
complained of were done by SER
wants of the corporation THAT is, the
particular city, or of the state itself.
It must be borne in mind that no
state of the United States can be
sued by its citizens without its con-
sent and none are liable for the torts
of its servants. mo severe. n state
has ever held itself liable to lndivi-
duals for the misfeasance, laches or
unauthorized exercise of power by
officers and agents" Gibbon vs.. U.
S. s Wall. 269
In this respect the Hawaiian Gov
eminent Is peculiar, having by the
Act of 1888 (Chapter 5I surrendered
its exemption from suit on account
of the torts of its servants. In the
states of the United States the effort
of the plaintiff is to establish that
the act was done by servant of
municipality for this can be sued,
whereas the state cannot be.
Judge Dillon, in 2 Municipal Corp,
Section GA, says, eff the corporation
appoints or elects the servants or
agents, and can control them in the
discharge of their duties, can con-
tinue or remove them, can hold them
responsible for the manner in which
they discharge their trust; and if
those duties relate to the exercise of
the corporate powers, and are for the
peculiar benefit of the corporation in
It's local and special interest, they
may be regarded as its agents or SER
wants and the maxim of respondent
superior applies" The superior in
this case being the corporation. "But
if, on the other hand, they are elected
or appointed by the corporation, in
obedience to the statute, to perform
public service not peculiarly local or
corporate, but because this mode of
selection has been deemed expedient
by the legislature in the distribution
OF the powers OF the Government, if
they are independent of the corpora
ton as the tenure of their Office and
the method of discharging their
duties, they are not to be regarded
as the servants of the corporation for
whose acts or negligence it is i'm
pliedly liable, but IS public or state
with such powers and duties
as the statute confers upon them, and
the doctrine of respondent superior is
not applicable" That is, the NUM-
cipai corporation would not be liable
If they were the servants of the state.
In our case the Road Board is not
and the service of the
Road Supervisor is not peculiarly
local, but is for the public benefit,
since the central government through
the Road Boards has the care of the
public roads and streets, and we have
no municipal corporations to whom
this duty might be entrusted.
In Hill vs.. Boston, 122 Mass, 344,
the Court held that the city of
Boston was not liable to a child
for an Injury suffered by rea-
son of the unsafe condition
of a staircase in a school house
which VINO provided by the city UNI
der the general law, on the principle
that no private action, unless author
lied by express statute, can be main
of public duty imposed upon it by
a law for the benefit of the public
and for the performance of which
the corporation receives no benefit or
The counsel for the defendant re-
lies upon Macmillan vs. Mayor, 81
n. Y. $50. Here the Court held that
where by legislative enactment, a
munic ii corporation is required to
elect or appoint an officer to perform
a public duty, laid not upon it but
upon the officer, in which it has no |
private interest, and from which it |
derives no special benefit or advan
tage, such officer is not servant or
agent of the municipality, and for
his negligence or want of skill in the 4
performance of his duty, or for that /
Of servant whom he employs, it is
officer or servant has IN charge and
the negligence is IN the use of, cor
porate property. In this case the
duties imposed by law upon the COM
missioners of public charities and
corrections were public in their char
acter and from their performance no
especial corporate benefit was de-
rived. Accordingly it was held that
The city corporation was not liable
for the negligence of the commits
;ioners in driving an ambulance be.
onging to the city which struck and
caused the death of plaintiffs intes-
ate. The decision is based upon
he principle that the commissioners
we're state officers discharging a
public duty and SO the city was not
liable, and if the state of New York
vas capable of being sued it would
follow that, on the doctrine of res
'ondent superior, it would be liable.
This is our case exactly. Here we
hold that the Road Board is an
agent of the general government dis
charging public duties for the public
benefit, and whether the acts COM
planned of are done by it or by the
he Road Supervisor nominated by
t, the Government is liable under
he Act of 1888, referred to-
We therefore hold that it was not
'rrorto refuse the instruction request
ID and override the exception. Having
Irrived at this result il is not neces-
airy to discuss the first point made
~ plaintiff, that the instruction
hould not have been given in the
orm presented because it assumes
ertain facts to be true which should
llE% - L.