I recognize the rule stated by my esteemed associates that a municipality cannot claim exemption from a recognized liability, unless it is clearly and expressly given; and a doubt as to whether a particular case falls within the exemption will be resolved against the municipality. In my opinion, the question is free from doubt. The case made out by the amended complaint, which is based on the neglect of city officers in making improvements in streets, falls squarely within the exemption declared by the proviso.
I agree with the statement that the proviso is clear, unambiguous, and not subject to any interpretation save that expressed. The thought expressed, as I comprehend it, is that the city is not liable for any damages suffered or incurred by any person for or by reason of any neglect of the city or any of its officers, and nothing in the charter shall be so construed as to make it liable. It would tax my imagination to believe that the legislature, after investing the officers of the city with power over its streets, and being careful to prescribe a rule that nothing in the grant shall be so construed as to make the city liable for the neglect of any of its officers, intended at the same time that the city should be subject to a common law liability for the same cause; or, in other words, that it was intended to grant immunity with one hand and withhold it with the other. Why grant an exemption which does not exempt?
It is said that to give the proviso the interpretation contended for by the city would work manifest injustice, and the courts do not favor construing a statute, even if doubtful, so as to work an injustice. In a number of states such an exemption is not considered *Page 411 inequitable. As said in Wilmington v. Ewing, 2 Pennewill (Del.) 106, 43 A. 307 (45 L.R.A. 79):
"The great burden imposed upon municipal corporations by their unrestricted liability for injuries occasioned by defective streets and sidewalks, has doubtless been the cause of the frequent modification or removal of such liability."
Be that as it may, if the exemption is unjust, the remedy should be afforded by the body which enacted it. The legislature is the exclusive judge of the policy of the enactment, and has ample power in the premises. See Wilmington v. Ewing, supra, and cases reviewed therein. Morrell v. City of Phoenix, 16 Ariz. 511,147 P. 732.
The judgment should be affirmed.