The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1907-07-26
TERRITORY PAYS
NOT The COUNTY
JUDGE PARSONS OF HILO GIVES
IMPORTANT DECISION REGARD
ING ROADS AND DAMAGES.

HILO, July 23-The Territory of Ha-
wall is liable for any damages. caused
by the negligence of the employees of
the County in making or repairing
roads. Such, in a nutshell is the de-
cision handed down by Judge Parsons
of the Circuit Court of the Fourth Cir
cult in the case of Kumazo Matsumura,
an action to recover $4,000 for alleged
damage to property at Kahalii caused
by one Kealo, a road employee, who is
said to have negligently turned a
stream of water across it.
The judges decision is that while
the County makes and repairs the
roads, the work is done for the Terri
tory which, through the Superinten-
dent of Public Works, exercises super
vision and control of the thorough
ares.
The matter came up in Chambers in
the form of a demurrer by County At
torney Williams to the plaintiffs dec
laration, presented by Attorney Carl
S. Smith. The demurrer was sustained.
| The Judges decision, which will doubt
less be appealed, runs in full thus:
plaintiffs declaration herein is de-
INJURED to upon four grounds, only
one of which, namely, that the said
| declaration does not state facts suffi-
Gent to constitute a cause of action,
need be considered, in the view taken
by the court.
"The declaration alleges, in effect,
that on the 4th day of February, 1906,
at Kahalii, within this county and cir
cult, one Keola, an employee of the
defendant, while repairing a certain
/ highway for the defendant did negli
gently divert the course of a large
stream of water thereby injuring the
property of the plaintiff, to the plain
tiff's damage in the sum of $4,000.
The declaration prays judgment
against the defendant, the County of
Hawaii, in the sum of $4,000 with
costs and attorneys fees
"In the United States there is no
common law obligation resting upon
counties to repair highways within
their limits and they are not obliged
to do so unless by force of statue
even when the legislature enjoins
upon corporations of this character the
duty to make and repair roads, streets
and bridges and confers power to levy
taxes therefore, the general tenor OF
the decisions is to treat this as a pub
uic and not corporate duty, and to
regard such corporations, in this re-
spect, as public or State agencies, and
not liable to be sued civilly for dam
ages caused by the neglect to perform
| this duty, unless the action be express
ly given by statute.
I'm this Territory the public high
ways are not the property of the Coun-
ties and are under the general super
vision, charge and control of the SUI
perintendent of Public Works and, ex-
cept as otherwise provided by law, he
| is charged with the execution of all
duties relative thereto.
Chapter 4 of the County Act which
gives to each County, among other
powers, the power to open, construct,
maintain and close public streets, high
ways, roads, alleys, trails and bridges
within it's boundaries, does not deprive
the Superintendent of Public Works
of his right of supervision.
1.-THE County of Hawaii is not d vo-
luntary corporation; it is not organ
lied for profit; 1T has no pecuniary in
terest in maintaining the public high
ways of the Territory and derives no
benefit therefrom other than the benz
eft which accrues to the public gen.
orally; it has no fund out of which
losses caused by the negligence of its
servants may be paid and it is not au-
thorized to levy taxes for the purpose
of meeting such losses. 1t is polit-
ical subdivision of the Territory, Gre
ated for convenience, authorized to
make contracts within certain specified
limitations and to sue and be sued up
on it's legal obligations.
However unsatisfactory the reasons
may be, the rule that counties are not
liable in actions such as that herein
declared upon is we'll established.
"In constructing, maintaining and
repairing the highway described in
the declaration herein, I am of the OPP
inion that the defendant was acting
for the Territory of Hawaii and that
it cannot be held liable in damages for
injury to the property of the plaintiff
caused by the negligence of the en-
ployee Keola as alleged in the said
declaration.