The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1908-04-29
Oh. St. 10, draws the distinction as

tage and convenience of the locality
and its people; a country organization
is created almost exclusively with {
view to the policy of the state at large
for purposes of political organization
and civil administration, in matters O
finance, of education, of provision FOL
the poor, of military organization, of tn
means of travel and transport, and es
pecially for the general administration
of justice. With scarcely an exception
all the powers and functions of the
county organization have direct and
exclusive reference to the genera
policy of the state, and are, in fact
but a branch of the general admins.
tration of that policy"
i With cases holding counties immune
because their powers are so limited
that they can scarcely be called corr
porations at all, and others reaching
the same result because their powers
partake of the sovereign character OF
the states, it is not surprising to find
the whole distinction between counties
land cities repeatedly criticized and dis
approved In Thompson's later work
he says: THE reason of the rule
which, in many cases, charges a city,
town or village with liability, and I'M
der the same conditions of fact, exon
crates a county. is artificial, and is to
! be sought for in historical sources: 1t
is not supported by legal reason or
analogy" Thomp. Com. on Neg. Sec.
1922 Another writer says: "Tf it be
granted that a public corporation, such
as city, is liable because it is charg-
ed with a public duty and invested
with means to enable it to perform
/ that duty, it is logically impossible,
as it seems to us, for one who pro-
ceeds on principle to avoid the con-
clusion that county charged with a
specific duty and provided with the
means of performing it is likewise
liable .. Both are governmental
corporations invested with authority
| from a distinct locality and what is the
duty of one is in its essential nature
the duty of the other, and If one is
liable for a breach of duty, If we keep
to principle we must affirm that so also
| is the other Elliott, Roads and
Streets, I'd Ed. Sec. 50. See also Secs.
439, 444 and 449.
Judge Dillon says: "It must be con-
fessed that it is not easy to find solid
legal grounds to sustain the distinc-
ton. To a limited extent the same
view has been elsewhere taken. 1t
must be confessed that it is not easy
to find legal basis for the distinc-
ton between cities and counties in re-
spect of the duty to keep the streets
and highways under their respective
jurisdictions in repair, whereby the
former are held to an implied civil LA
bility for damages caused by the neg
lect of this duty, and the latter are
held not to be thus liable" 2 Dill.
Nun. Corp. I'D ED, Sec 99S.
In Williams. Municipal Liability for
Tort. there is an attempt to find a sat
isfactory basis for the distinction in
question which is thus stated:
1.-THE immunity of quasi corpora
tion stands upon the ground, not that
it is a governmental agency. but that
its duty relative to highways is pub
lie and governmental; for though a
governmental agency, it will be liable
to a private action at common law at
the suit of any person who may suf-
fer special damage from the negligent
performance of any duty that is not
public and governmental in nature"
Williams. Nun, Lab. Tort, Sec. II.
This, however, brings us back from
the character of the defendant to the
nature of the tort, already discussed at
put counties and municipal corpora
lions on the same footing, for as the
same author observes:
1.-THE actual manual labor involved
in grading and improving streets and
highways is purely ministerial in char
acter. 1t involves the exercise of no
judgment or discretion on the part of
the municipal authorities; it requires
no deliberation for it's accomplishment.
When therefore the manual work of
construction begins, the reason for the
application of the usual rule of i'm
munity ceases, and municipal corpora
tions are held responsible in damages
for the consequences of their negli-
gence or lack of due skill in perform
ing the actual work of grading and
improving Williams, Nun. Lab
Tort, Sec. Sc.
Returning to Hawaii we find the
question arising as one of first i'm
preston, as neither counties nor any
other corporate subdivision of the Ter
ritory ever existed prior to the county
act of 1905. Were there no judicial
precedents contra to the line of cases
above criticized (see for example Anne
Arundel County V. Duckett, 20 Md 468;
8S Am. Dec. $50, they would still be
inapplicable to the newly created coun-
ties of Hawaii, which, except in name
and corporate capacity, bear little re-
semblance to the counties of the va
ripus states, but whose powers, as de-
fined by S. L. 1905, Act SO, are con-
fined to the exercise of police powers
and to the ministerial duties of con-
Quoting sewers, pumping stations, wa
ter works, lighting plants, fire depart
ments, streets and highways. What
ever may be the authority for exempt
ing counties on the theory that they
are governmental agencies it cannot
be applied to those that have no power
to levy taxes, 70 county courts for
the administration of justice, no con-
troll over matters of education, pro-
vision for the poor or military organi-
cation. They could as well be called
districts" as counties or, on the
other hand, could be called "city and
county" as has been subsequently done
with the island of Oahu, which has
been converted from the County of
Oahu" into the "City and County of
Honolulu" S. L 1907, Act 11S. These
differences make the extension of i'm