The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1907-07-22
ON-L|ABILI1Y
Of COUNTIES
important Decision by Judge
Parsons in Damage
Proceeding.

filed a decision In the case of humaZt
Matsamura VS.. The County of Hawaii
an action for damages claimed to have
been incurred through the negligence
of an employee of the county.
The court sustained the demurrer on
the ground that there were not suff
cient facts to constitute a cause of
action. The court ruled that there is
no common law obligation resting up
on county to repair highways within
its limits, and it is not obliged to do
so unless by force of statute. High
ways are not the property of counties
but they are under the general super
vision, charge and control of the Super
intendent of Public Works. The de-
cision, which is important as well as
of general interest in all counties, is
in part as follows:
"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 certain
highway for the defendant, did negli-
gently divert the course of large
stream of water thereby injuring the
property of the plaintiff, to the plain
tiff's damage in the sum of $4,000.
"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 statute.
4" Even when the legislature en-
joins upon corporations of this charac-
ter the duty to make and repair roads,
streets and bridges and confers power
to levy taxes therefor, the general
tenor of the decisions is to treat this
as a public and not corporate duty,
and to regard such corporations, in this
respect, as public or State agencies,
and not liable to be sued civilly for
damages caused by the neglect to per-
form this duty, unless the action be
expressed by gwen statute
SIN this Territory the public high
ways are not the property of the eoun
ties and are under the general super
vision, charge and control of the super ]
intendent of public works and, except
as otherwise provided by law, he is
relative thereto.
Chapter 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. Indeed his
right of supervision is expressly recog |
nized in that act.
FThe County OF Hawaii is not a
corporation; it is not or
ganized for profit; it has no pecuniary
interest in maintaining the public high
ways of the territory and derives no
benefit therefrom other than the benefit
which accrues to the public generally;
it has no fund out of which losses
caused by the negligence of its ser
wants may be paid and it is not au
-horized to levy taxes for the purpose
Of meeting such losses.
''It is a political subdivision of the
territory, created for convenience, au
thorized to make contracts within GER
tain specified limitations and to sue
and be sued upon its legal obligations.
$50 far as the liability for the torts
IF its servants is concerned distinc
ion has been made between municipal
proper and quasi corpora
tons such as counties and townships,
The reason of the rule, says Judge
Thompson, (which in many eases
charges a city. town or village with
liability and, pnder the same condi-
tons of fact, exouerates a county, is
and is to be sought for in
historical sources; it is not supported
oy legal reason or analogy.
However unsatisfactory the reasons
may be, the rule that counties are not
liable in astions sueh as that herein
declared upon is well established
A number of authorities are cited,
the dictum of the Supreme
Court of this Territory in Coff1eld VS..
Territory of Hawaii, Is Hawaiian $50.
Gin constructing maintaining and re-
pairing the highway described in the
declaration herein, am of the opin-
ion that the defendant was acting for
the Territory of Hawaii and that it
can not be held liable in damages for
injury to the property of the plaintiff
caused by the negligence of the en-
ploye Keola as alleged in the said
declaration. The demurrer is sus-
tained''
W. O. Aiken and family returned