The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-01-06

held to include actions of tort for
damages.
Bat we take the ground that the
word "claim" is not only one of
very broad meaning, but there is
nothing in the statute to show that it
is not intended to be used In its
broadcast sense. Nor is there any
thing to suggest that the Legislature
meant to confine 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
we'll 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 claim as verb In
our statute in actions Of tort. Civil
Code, Sec. 1116)
The Act of Congress Of March Sd,
1887, defining the jurisdiction of the
United States Court of Claims, de-
finitely 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
ernment of the United States, or for
damages, liquidated or unliquidated
in cases not sounding in tort" etc.
Notes Rev. Stat. U. S. 354) If such
actions had not been thus specifically
excluded they would have been in
cluded by the general words.
We find that a right of action
against the government for tort is
given by the statute of 1888 referred
to.
It is interesting to note in this con-
nection that no other sovereign state
has sever held itself liable to indi-
viduals for the misfeasance, laches or
unauthorized exercise of power by it's
officers and agents" MILLER, j., in
Gibbons vs.. United States, 8 Wall,
269.)
The defendant made the further
point in the argument, that the
Government is not responsible for
the acts of the Road Supervisor or
those which may be done under his
authority, on the ground that lie is
not an agent of the government.
We know of no basis for such q
contention. At the time the alleged
damages happened, the streets of
Honolulu were under the charge of
Road Supervisor subject to the direc-
tio9 9a 22dl c cQqgatFei 81 the Mini Minister of
Interior, who had the power of his
appointment and removal Naws of
1887, Chap. 8, Sec 12). The circum-
stance that the appointment is by
the minister does not make the SUI
pervisor his private servant or agent,
he being required by law to make
the appointment. ''The state holds
it's highways in trust for the public.
Improvements made by its direction
or by it's authority are it's acts, and
the ultimate responsibility, of
course, should rest upon it." (Transp.
Co. vs.. Chicago, SO U. S. 641). The
Road Supervisor under the Act of
1887 was distinctly a State officer
and agent, and the state is RESPONSE
BILE for those of his acts which are
done in the scope of his authority.
The defendant further contends
that even If it is conceded that the
government is liable generally for the
acts of its agents, and that the Road
Supervisor was its agent. it is not
liable under the evidence in this case,
in that, it is not liable for mistake
of Judgment of its agents whereby
injury is caused, or for injuries from
storm water caused by a change of
grade of streets, or for not providing
sufficient drains for carrying off ex-
ceptional quantities of storm water.
It appears from the evidence, that
a part of the betting and machinery
of the plaintiffs planning mill, was
below the floor in a kind of basement
or cellar which was lower than Ala
kea street at that place; makai OF
plaintiffs lot and adjoining it was an
area which was also lower than the
street, and which was continuous
with the low part of his lot. The
sidewalk had the effect of a dam to
prevent storm water from flowing
from the street to these lower places.
During storm by which the street
was flooded, the defendants agents
cut trenches through the sidewalk Sc
that the water escaped into the low
land adjoining plaintiffs lot, and
thence to his lot and out again
through a continuation of the low
land toward the sea without injury
to the plaintiff. In the meantime
the defendant was filling in this
channel of escape of water and after
this storm, continued the work in
spite of the plaintiffs protests, until
all chance of any water escaping
from his premises was destroyed.
After this, new storms occurred and
| quantities of storm water flowed
from Alakea. street through the
aforesaid trenches into the low land
adjoining plaintiffs premises, thence
into the low part of his premises,
whence the escape of the water being
shut off by the defendants opera
tons of filling in the channel to the
sea, the water rose until it reached
the plaintiffs machinery and betting
and caused the injury complained of