The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1908-04-29

him as citizen of the town, Or be
cause he has suffered an injury in tn,
exercise of public right, from neg
lect of the town to perform a publ,
duty. The corporation being author
lied by law to execute the work. if, il
their manner of doing it, they cause
private injury, they are answerable il
the same way and on the same principle
as an individual who Injuries another
| by the wrongful manner in which he
performs an act lawful in itself. Tt has
| been sometimes made question. wheth-
| err in the particular case the corpora
| ton were liable as principals for the
| conduct of those who performed the
work on their account; but where q
work is snce conceded to be done by
| the corporation, it would seem to be
clear, on authority and general prin-
| ciples, that corporation, public or pri-
vate, must be held liable like an indi-
vidual for injuries caused by negligence
in the process of executing the work -
Eastman v Meredith, SO N H. 284, 295
A recent case In the same state con-
tains an admirable summary Of the
| limitations of the doctrine of govern
mental immunity in those states which
adhere to it. Rhobidas V. City of Con-
cord, 30 n. H. 90; Al At. 50. From the
authorities there collected it appears
that in those jurisdictions towns are not
liable at common law (1) for the i'm
proper discharge of a purely govern
mental function, (2) for neglect to per-
form duties imposed upon them with
out their consent, and (3) for the acts
of officers whose powers and duties are
so fixed by the legislature that the town
cannot control or direct their actions,
but that they are liable (1) for negli-
gent acts (even in the discharge of inn
posed duties) which interfere with the
rights of others, provided such rights
do not depend upon the imposed duty,
(2) for their acts concerning property
not employed in public use, and (3)
where duties of public nature are
voluntarily assumed.
1t will be observed that in none of
these general statements is any distinc-
tion sought to be taken between injury
resulting from the necessary conse-
quences of the negligent act and that
resulting from the negligent manner in
which the act was performed. No diff
ference in principle bt tween these cases
is apparent, nor is any recognized by
the authorities Ashley v. City Of Port
Huron, 35 Mich. 296, in which the in
jury was the necessary result of the
work, cites as Gan action like the one
at BARI Nevins v. City of Peoria, Al
Ill. 500, in which plaintiff 8 claim was
"that the work undertaken by the city
was badly and earelessly done and
never completed. and that, in cofise-
quence thereof, his house and grounds
were flooded at every considerable
rain, - and Alton v. Hope, 6S I'll. 167, in
which gutter was negligently allowed
to get out of repair. In Wallace v.
City of Muscatine, 4 Greene (Ia.1 ZIG,
declaration alleging Improper and
unskilfui construction of certain scul-
verts, drains and cutters made by the
city, by which the water was turned
and flowed upon the plaintiffs prem
ises,' was held to state cause of ac-
tion. Other courts have held munich
paIities liable for injury to plaintiff IS
land resulting from negligence in the
construction of bridge which turned
the current (Stone V. Augusta, 46 Me.
1871 or in the construction of one
which proved insufficient to allow
freshet water to pass through (Allen-
town " Kramer, 70 Pa. st. 406), or in
the construction of culvert with the
same defect Dorchester White Lead
Company v. City of Rochester, 3 n. Y.
463), or in digging ditch which let
water on plaintiffs land (Kobs V. City
of Minneapolis, % Mimi. 1897, all with
out abiding to any possible distinction
as to whether the negligence was in
doing the work or in the manner of
n z e
gence resulting in turning surface
Inman V. Trip, IL R. I. $50; Gilman v.
Laconia, So N. H. 80, and Town of
Princeton V. Gieske, 90 Ind. 102 In
jury by the dumping of dirt stands on
the same footing. Hendershott V. City
of Ottumwa, 46 Ia. 658.
If, then, municipal corporation
would be liable in this action, is there
any authority for the exemption of the
County of Hawaii, which has been ex-
pressly created corporation empow-
cred to sue and be sued Is. L. 1905, Act
80, Oh. 4, Sec. 81, upon the ground that
it is countya
The foundation of the immunity of
counties from liability for torts is the
case of Russell ct al V. The Men Dwell
ing in the County of Devon, Term
Rep. 667, but the question in that case
as put by Lord Kenyon, was whether
this body of men who are sued in the
present action, are corporation. or
quasi corporation, against whom such
action can be maintained and the de-
cision is based on the lack of corporate
capacity of the defendants and the in
expedieney if not the impossibility of
holding the inhabitants at large re-
sponsible for the tort 1t is difficult in
reading the opinions in that case to es-
cape the conclusion that if the suit had
been against county expressly created
a corporation with power to sue and be
sued the result would have been differ
emit As Baron Pollock said in a subse-
quent case: ''We think it clear, after
full consideration of the case, that the
only reason why an action would not lie
was, because the inhabitants of the
county were not corporation and could
not be sued, difficulty that was got
rid of by the statutes of Hue and Cry,
and other statutes giving specific
remedy against the hundred Maxim
non V panSOn 6 Eyeh 31Q. Is Emo