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

101, 106 Since the passage of the coun-
~ act it has been provided that the
road taxes, which are still a special
deposit, shall be expended in the
making. maintaining and repairing Of
the public roads and highways in the
several road districts wherein the same
are collected and shall not be expend-
ed in any other district" or for any
other purpose. Laws of 1905, Act SO,
Sec. ). The Supervisors of each county
have now the functions and authority
of the different road boards and road
supervisor. and it is provided that the
road taxes shall be expended only for
the making, maintaining and repairing
of public roads and highways in the
several road districts as authorized by
the supervisors of the county from
time to time and these moneys may
not be used for any other purpose.
Laws of 1908, Act &c. Sec. 8. The func-
ton of repairing and maintaing public
highways by the Territory is undoubt-
edly a governmental or public one.
That the legislature has conferred on
the counties the power to do the same
thing does not change the nature of
the function itself, which / think is
the same now as before, namely, gov
ernmental.- BY the performance of this
work counties receive no special bene-
fit or profit any more than the Terri
torv did formerly. Probably it is true
that the residents of a county use its
highways more frequently than resi-
dents of other parts of the Territory
and in that sense may reap a greater
benefit from them But this is more
emphaticalIy true in respect, for in
stance. of policemen and fremen, for
1~xI;o aa%- tee. Il
not be liable.
In Arkansas, California, Connecticut,
Indian Territory, Massachusetts, Michi-
gan, New Jersey, South Carolina and
Vermont the duty of repairing and
maintaining public highways is regard
ed as a governmental one, and in the
absence of statute a municipality is not
liable for negligence in respect there
TO. Arkadelphia ". Windham, 40 Ark.
1879; 4 Am. st. Rep. 50; S. w. $50;
Winbigler v. Los Angeles, As Cal. SO:
Hewison V. New Haven, 81 Conn. AIS;
Blaylock V. Muskogee, III Fed. 125:
Hill V. Boston, 122 Mass. 344: Detroit
v. Blackeby, q Mich. "a; Pray v. Jer-
sey City. go N. ]. L. 1874; Young v.
Charleston, 90 s. c. 116; AZ Am. Rep.
S27: Bates v. Rutland, 81 VT. 49,
In the absence of statute NUM-
cipality is not liable for negligent acts
of it's policemen, fremen, health
school and charity officials. This is
on the theory that the duties perform
ed by these persons are governmental
Yet they are no more governmental
than in the case of highways in this
Territory.
Plaintiff, however, contends and the
majority of the court agree with him
that even if defendant is not liable for
failing to keep public highways in re-
pair it should be held liable for negli-
gence in repairing. that is, that there
is liability in case of a misfeasance
even if otherwise as to nonfeasance.
This distinction is referred to in some
of the cases but on principle it does
not appear to be sound because the
function of repairing highways is gov
ernmental whether there is a failure
to repair or a negligent repairing. In
the late and well considered case of
Johnson V. Somerville, 81 N. E. (Mass.)
26S, it was held that no distinction can
be made between negligent and inten-
tional acts" See also Alberts V. Mus
kegon, 146 Mich. 210, and Young v.
Charleston, 20 s. c. 116; AZ Am. Rep.
1927.
In the case of Johnson V. Somerville
plaintiff claimed damages by reason of
the flooding of his cellar which was
caused by an employee of defendant
city in dumping ashes into a water
course on an adjoining piece of land.
The court said:
IF the plaintiff had been run over
and injured through the negligence of
a driver of one of the defendants
carts, while it was being used in the
removal of the ashes here in question,
he could not have recovered damages
for the injury from the defendant city
That is established by the recent case
of Haley V. Boston, 191 Mass. 291. The
ground on which it is contended that
the city is liable here is that the rule
applied in Haley v. Boston is confined
to cases of negligence and does not
apply TO injuries caused by intentional
acts; that is to say. by acts which, if
done on the plaintiffs land in place
of being done on land not owned by
the plaintiff, would be ground for an ac-
ton of trespass Quare clausum fregit,
as distinguished from an action on the
case. In the opinion of a majority of
the court no distinction can be made
between negligent and intentional
acts"
Alberts V N-slsegon. 146 Mich 21o
is diametrically opposed to the conclu-
sion Of the majority in the case at bar
There plaintiff was the owner of a
barn abutting on a certain avenue in
defendant city, on which avenue de-
fendant was operating steam roller
Through the negligent action of de-
PENDANT sparks from the steam roller
set fire to the barn and burned it up.
The court held that the city was not
liable. AS it well said:
The case at bar is not one of dam
ages resulting from a direct trespass
or from misfeasanee of the city
amounting to trespass. 1t is a case
of consequential injury resulting di-
rectly from the negligent conduct of
the defendants agents.
There. as here, the injury occurred
to property outside the limits of the
highway. There, as here, the injury
would not have occurred but for the
negligence of defendant. There, as
hnr hA sl- i