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

amounts. Their administrative boards
/ possess a limited power of taxation for
| county purposes. In these respects no
substantial difference is perceived To
! exist between them and chartered mu-
nicipal corporations. The argument
that a liability should attach to the
latter, and not to the former. because
the latter are supposed to accept their
charters voluntarily, while the duties
and obligations annexed to the former
are imposed on anthem involuntarily, is
based on an assumption, in most cases
untrue in point of fact, and is, even
where the premises are correct, fan
tastical and destitute of sense There
is no sound distinction between the
sanction of an obligation voluntarily
assumed by a public body and that of
an obligation which the legislature. in
the due exercise of its powers, has i'm
posed upon it."
The theory that involuntary quasi
corporations are not liable for negli-
gence is referred to as well settled''
in Barnes V. District of Columbia, 81
u. S. $40, $50, but the court was there
referring to responsibility for mere
negligence" or more specifically to the
neglect to keep highways in repair. In
Weet v. Brockport. 16 N. Y. 16l, there
of the tort was taken, and the trIs-
tees of a village held liable in their
corporate capacity for misfeasance.
That corporation is not to be classed
as a "quasi-eorporation merely be-
tcause involuntary, is shown by Barnes
Nv. District of Columbia itself. in which
the district was held liable for the
negligence of it's officers, in spite of the
| fact that not only its corporate capac-
! ity but also the duty neglected and
the negligent officers were all imposed
on it without its consent.
There is no lack of corporate fund"
| in the present case, as the county re-
iceives an income from the Territory to
be appropriated FOR any legal object,
nor is the modern misapplication Of
/ this phrase tenable under the decision
| in District of Columbia v. Woodbury..
1876 U. S. $50, 456, in which the court
says:
ut is suggested that the District is
without the means to perform the sup
posed neglected duty: that none of it's
officers can pay Judgment against it,
and that no process against it could ell
force payment; that even a manda-
mus against it to levy a tax would be
futile because neither the District nor
the Commissioners can levy a tax for
any purpose. and that no judgment
against it can be paid except by war
rant upon the Treasury, pursuant to
an appropriation by Congress. We do
not perceive that these considerations
materially affect the principle upon
which the decision in the Barnes Case
rests"
For these reasons we are of the opin-
ion that the declaration states a cause
of action against the defendant in this
case.
The exceptions are sustained
Carl S. Smith and Albert F. Judd for
plaintiff
William L. Whitney. Deputy Attor-
ney General. &c. r. Tfemenway. At
torney General, with him on the brieDs
for defendant.
DISSENTING OPINION OF WILL
DER, j.
Assuming, what is perhaps not tech
nically averred, that the negligent act
complaired of was done in the course
of maintaining and constructing the
read, the question is whether the dec
laration sets forth a cause of action.
In the absence of statute, as a gem
eral rule, which is conceded by both
p'aintin and defendant, counties as dis
t.nguished from what are called full
municipal corporations, such as Cities
are not liable in actions of this kind,
the divergence of opinion being wheth-
er this defendant is within that rule.
Counties are created for public pur-
poses without regard to the actual
wishes of their inhabitants and are in
substance but agencies of the govern
ment for the purpose of aiding in the
general administration thereof. The
IL 4l-a~-
is only done so that they may better
perform their duties. They usually COM
prise large areas of territory which
are not thickly settled and in which
the relations of life and business are
comparatively simple. On the other
hand, municipal corporations proper
are generally incorporated at the re-
quest or at least with the assent Of
their inhabitants by special charters or
voluntarily organized under general
laws. They have a greater variety OF
powers and duties, are usually confined
within smaller and more compact
limits are more thickly settled, and
the relations of life and business in
them are more complex. Because of
the difference In the nature of the two
organizations it has been generally held
that, as the functions of the one are
in the main governmental and Of the
other corporate, an action of tort for
negligence lies against a city but not
against a county. This distinction
which seems to be upheld by reason Of
public policy, when viewed from the
standpoint of reason, does not appear
to be sound. Cities as much as coun-
ties are auxiliaries of the general gov
eminent in the business of Internal
administration. In both cases their
rights, privileges and functions are IN
der the control of the legislature and
by that body subject to be changed.
modified or repealed as the public well
fare may be supposed to require, and
neither one can justify it's existence or
any rights or privileges conferred up
on it by anything like a contract.
However that may be. the distinction
is we'll established. Coffield V. Terri
tory, 10 Haw. ATS, 4S0. I prefer, how
ever not to rest the question of liabil-
ity or nonliability in this case upon