[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 215 In Banc. This is an appeal by the plaintiff from a judgment of the circuit court entered in favor of the defendant, the City of Portland, after the plaintiff had completed the presentation of her proof and the court had sustained the defendant's motion for a nonsuit. Plaintiff's evidence indicated that she was tripped and thrown to the pavement at a street corner when her heel was caught by a defective angle iron forming the outer edge of the curb. The purpose of angle irons is to protect the concrete against wheel abrasions from vehicles turning the corner. Wear and erosion had developed a small depression between the cement and the iron into which the heel of one of the plaintiff's shoes entered, throwing her to the pavement.
Section 281 of Portland's charter provides:
"No recourse shall be had against the City for damage or loss to person or property suffered or sustained by reason of the defective condition of any sidewalk, street, avenue, * * * but in such case the person or persons on whom the law may have imposed the obligation to repair such defect in the sidewalk, street or public highway, or in the sewer, and also the officer or officers through whose official negligence such defect remains unrepaired shall be jointly and severally liable to the party injured for the damage sustained." *Page 217
The city, in support of the circuit court's judgment, relies principally upon the section of the charter just quoted which, it contends, is valid and applicable to the plaintiff's claim. The plaintiff argues that the maintenance of streets and sidewalks is a corporate, not a governmental, function, and that this charter provision conflicts with § 5-502, Oregon Code 1930, and with Art. I, § 10, Constitution of Oregon, which provides:
"No court shall be secret, but justice shall be administered openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation."
Section 5-502, Oregon Code 1930, reads:
"A suit or action may be maintained against any of the organized counties of this state and against the State of Oregon by and through and in the name of the State Highway Commission upon a contract * * * and an action or suit may be maintained against any of the other public corporations in this state mentioned in section 5-501 (Oregon Code) in its corporate character, and within the scope of its authority, or for an injury to the rights of the plaintiff arising from some act or commission of such other public corporation * * *."
As will be seen from the foregoing, the city seeks to avail itself of immunity from suit, while the plaintiff contends that such immunity is not available.
Dr. Robert Dorsey Watkins, in a very comprehensive treatise entitled The State as a Party Litigant (45 Johns Hopkins University Studies in Historical and Political Science (1927), p. 1) after tracing the doctrine of nonsuability through the Roman law, describes its development in England thus:
"That the king as chief of the feudal system had no court above him, in which he could be held liable, *Page 218 as the feudal lords could be in his, was the result rather of accident than theory. This came, not from any `juristic necessity,' but as a result of the practical working out of the feudal system; it was the logical result of that system, based as it was upon the `proprietary theory of the kingship.' The king's privileges were personal, and such as any natural person was capable of enjoying and exercising; * * *"
He then delineates its development after the decline of the feudal system. We again quote:
"How then, from the position of personal exemption, was the idea of state exemption derived? The following is offered as a reasonable hypothesis. With the downfall of the feudal system and the growth of the idea of the modern state, the old restraints upon the king vanished. The king himself became the state. The king retained the powers he had held before by virtue of his position at the apex of the feudal pyramid; he then became the head of the Church also, and combined Divine attributes with temporal authority. At about this time doctrines of sovereignty appeared. * * * Even after actual power passed from the king, this idea of immunity was retained by the body politic, was kept by the state with a democratic as opposed to the state with an autocratic head."
Next, Dr. Watkins shows that in the interval between the Revolution and the Constitution nonsuability was enjoyed by all the states, and that Hamilton, Madison and Marshall considered it irrational to suppose that a state could be made a defendant. The doctrine was taken for granted, according to Dr. Watkins, and "was accepted rather as an existing fact by the people of the states, than adopted as a theory." Concerning the principle in America, the aforementioned article states:
"It seems a peculiar thing that the United States, the first of the `Modern Democracies,' should from its *Page 219 very inception have adopted the theory and practice of state and governmental immunity from suit. It is all the more remarkable from the fact that there was no central figure, no king to whom the attribute of irresponsibility because of infallibility could be attributed, thus affording at least a concrete juristic reason or argument for the doctrine."
The treatise ascribes to very practical considerations the acceptance of the doctrine in America, thus:
"The States of the Union were at the time of the adoption of the Constitution heavily indebted. They had no intention of being forced to pay these debts by court proceedings, and would quite probably have refused to adopt the final draft of the Constitution had not they, or rather their people, been assured that no diminution of the sovereign right to be dishonest would be suffered. * * *"
Next, the article comments upon the adoption of the Eleventh Amendment by developing the facts of Chisholm v. Georgia, 2 Dall. 419, 420, 1 L. Ed. 440. In 1791 Alexander Chisholm, a citizen of South Carolina, brought an action of assumpsit against the State of Georgia in the federal supreme court which, being persuaded that Article III, § 2, of the United States Constitution entitled him to maintain his suit, so held. That part of our Constitution read:
"The judicial power shall extend * * * to controversies to which the United States shall be a party; to controversies * * * between a state and citizens of another state."
Shortly after this decision was announced the Eleventh Amendment to the federal Constitution was adopted, rendering impossible any further litigation of that kind.
After the doctrine of nonsuability had been adopted in America in this manner and had gained for itself *Page 220 a secure place in our jurisprudence, there next came, according to Dr. Watkins, efforts upon the part of courts and legal scholars to state reasons for it. In other words, the acceptance of the doctrine and the assignment of supporting reasons were not simultaneous — the former was first. As we leave this treatise, we add that a companion article in The Doctrine of Nonsuability of the State in the United States by Dr. Karl Singeweld, 28 Johns Hopkins University Studies in Historical and Political Science (1910) 343.
We hope that the foregoing will be useful as a sort of prelude to the solution of the problem before us. Not alone has Dr. Watkins found that the acceptance of the doctrine in America was prompted by practical considerations; Chief Justice Marshall himself so stated in Cohens v. Virginia, 6 Wheat. 264 (405),5 L. Ed. 257.
"It is a part of our history, that, at the adoption of the constitution, all the states were greatly indebted; and the apprehension that these debts might be prosecuted in the federal courts, formed a very serious objection to that instrument. Suits were instituted; and the court maintained its jurisdiction. The alarm was general; and, to quiet the apprehensions that were so extensively entertained, this amendment was proposed in congress, and adopted by the state legislatures. That its motive was not to maintain the sovereignty of a state from the degradation supposed to attend a compulsory appearance before the tribunal of the nation, may be inferred from the terms of the amendment. * * *"
As will be observed from the foregoing, the doctrine of nonsuability was accepted in America as an existing fact — after it had made its appearance came the efforts to assign reasons for it. None of the reasons has escaped criticism — barbed criticism — but the following *Page 221 by Mr. Justice Holmes in Kawananakoa v. Polyblank,205 U.S. 349, 51 L. Ed. 834, 27 S. Ct. 526, is most generally quoted:
"A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends."
In the early case of Fowle v. Alexandria, 3 Pet. 398,7 L. Ed. 719, the federal supreme court "distinguished between `moneyed corporations, or those carrying on business for themselves' — liable for torts — and `municipal corporations,' `established for the general purposes of government' — not so liable.": 16 Oregon Law Rev. 250. Under the theory that a municipality is a body politic for the purpose of administering within its boundaries the affairs of the state, immunity from suit was soon claimed by the municipalities. The courts perceived that when a city is engaged in the performance of a governmental function which the state would otherwise have been compelled to perform, nonsuability is as available to it as it would have been to the state; but that when a municipality is not engaged in the performance of such a function, but is employed in the domain of commerce, it can no more justly escape the consequences of whatever wrongs it may do than if an individual were similarly engaged. Influenced by these considerations, the courts, in order to promote justice and to subject municipalities to liability where it was deemed that liability should be borne, made the distinction between governmental and corporate functions of municipalities. While engaged in the performance of the former the doctrine of respondeat superior is not applicable, and hence a city is not responsible for the negligence of its servants; but when the operation *Page 222 is corporate in character, the rule of respondeat superior is applicable and the city must answer for the wrongdoings of its servants. While this distinction has rendered the municipalities liable in numerous instances where immunity would otherwise have been available, the distinction has met with extensive criticism by writers in the law reviews and, apart from occasional limited support (Borchard Government Liability in Tort, 34 Yale L.J. 240), with no defense. The widespread adoption of the commission form of municipal government has increased the insistence upon the part of the critics that no municipal activity be deemed governmental. Although no profit is derived from the maintenance of streets which in early English history were constructed by the government, and although they are commonly used not only by the local residents but also by others, nevertheless, today the maintenance of streets is generally regarded as a corporate function, due to what has been termed an "illogical exception" to the general rule of nonliability. The general rule deems governmental most activities which are of a noncommercial character and which are performed for the benefit of the general public. This state employs the doctrine of nonsuability and makes the distinction between governmental and corporate functions. The maintenance of streets in this state is deemed corporate: Bluev. City of Union, 159 Or. 5, 75 P.2d 977. From the earliest of times many municipalities in this state have escaped liability for failure to maintain their streets in a state of repair by insertion in their charters of exemption clauses of the general kind mentioned in the second paragraph of this decision.
The earliest of our decisions sustaining the validity of a charter exemption clause is O'Harra v. City of *Page 223 Portland, 3 Or. 525, wherein the plaintiff, injured upon a defective Portland sidewalk, sought the recovery of damages. Section 347 Deady and Lane Code, the predecessor of § 5-502, Oregon Code 1930, provided:
"An action may be maintained against a county or other of the public corporations mentioned or described in § 346 * * * for an injury to the rights of the plaintiff arising from some act or omission of such county or other public corporation."
Section 346 of the same code provided:
"An action at law may be maintained by any county, incorporated town, school district, or other public corporation of like character * * *."
The court, after stating that § 347 was adopted in 1862, and that two years later the legislature amended the Portland charter by inserting in it the following: "The City of Portland is not liable to anyone for any injury to the person * * * growing out of the condition of any streets," declared: "This provision of the charter, it will be seen, expressly exempts the city from any liability to persons for injuries received on account of streets being defective or out of repairs." It reversed a judgment in the plaintiff's favor.
In Rankin v. Buckman, 9 Or. 253, the circuit court had sustained a demurrer to a complaint which alleged that the plaintiff's ward had been injured on a street in the city of East Portland, and that the defendants, the officials of that city, had permitted the street, through willful negligence, to remain in an unsafe condition. The city was not a party defendant. In reversing the ruling of the circuit court, the decision, written by Chief Justice LORD, quoted from the city's charter the following:
"The city of East Portland is not liable to any one for any loss or injury to person or property growing *Page 224 out of any casualty or accident to such person or property, on account of the condition of any street or public ground therein, but this section does not exonerate any officer of the city of East Portland, or any other person, from such liability, when such casualty or accident is caused by the wilful neglect of a duty enjoined upon such officer or person by the law, or by the gross negligence or wilful conduct of such officer or person in any other respect."
The decision declared: "In O'Harra v. City of Portland, 3 Or. 526, a provision similar to this clause was held to be constitutional," and added that the provision "imposes the liability from which the city is exempted in such case upon any officer of the city" who may be guilty of willful neglect. It continued that the city's liability "is shifted by this section of the charter from the corporation to the officer. * * * Bearing in mind that the city is exempted by § 33 of the charter, from liability for the injury to any person growing out of any accident on account of the condition of any street, but that section does not exonerate any officer of the city from such liability when the accident is caused by the wilful neglect of a duty enjoined upon such officer."
Sheridan v. City of Salem, 14 Or. 328, 12 P. 925, was an appeal by the city from a judgment recovered against it by a pedestrian injured upon a crosswalk. Mr. Justice THAYER took occasion to express his disapproval of the rule which held cities, rather than the negligent public officials, responsible when a person is injured upon a defective public street. The decision continued:
"Many of the larger towns of the state have avoided its effects, by provisions in their charters exempting the town from liability in such case, and imposing it *Page 225 upon the officers thereof, where they have been guilty of negligence that occasioned the injury."
In Mattson v. Astoria, 39 Or. 577, 65 P. 1066, 87 Am. St. Rep. 687, the decision, which was written by Chief Justice BEAN, affirmed a judgment of the circuit court against the city after that court had held invalid the following clause of the city's charter: "Neither the city of Astoria nor any member of the council thereof shall in any manner be held liable for any damages resulting from a defective condition of any street, alley or highway." The decision pointed out that the charter gave the city authority over the streets, and the council power to exercise these functions and to assess and collect the necessary taxes. The court held that the exemption of both the city and its officials violated the provisions of Article I, § 10, of our Constitution, adding, however, "that it is within the power of a legislature to exempt a city from liability to persons receiving injuries on account of streets being defective or out of repair, is unquestioned: O'Harra v. City of Portland, 3 Or. 525. But in such case the injured party is not wholly without remedy. He may proceed personally against the officers." It cited numerous authorities holding that an officer who assumes the duties and is invested with the powers of a public office is liable to one injured through his neglect, and concluded by declaring: "A provision therefore of the city charter exempting the city from liability for damages resulting from defective streets is not violative of the Constitutional provision referred to, because it does not wholly deny the injured party a remedy for the wrong suffered."
In Batdorff v. Oregon City, 53 Or. 402, 100 P. 937, 18 Ann. Cas. 287, the plaintiff, who had been injured *Page 226 through a defective condition of a sidewalk, instituted an action against the city and its councilmen which resulted in a judgment against the city and in favor of the officials. The city appealed from the judgment. The charter provided:
"Oregon City is not liable to any one for any loss or injury to person or property growing out of any casualty or accident happening to such person or property on account of the condition of any street or public ground therein; but this action does not exonerate any officer of Oregon City or any other person from such liability, when such casualty or accident is caused by the willful neglect of any duty enjoined upon such officer or person by law, or by the gross negligence or willful misconduct of such officer or person in any other respect."
In holding that the charter's grant of exemption to the municipality was invalid, the decision stated:
"If that clause be upheld as a valid exercise of the legislative will, it necessarily follows that a person will be remediless who sustains a pecuniary loss in consequence of an improved street being in a defective condition which was occasioned by ordinary negligence. * * * but, where a recovery is restricted by the act of incorporation to gross negligence and limited to the officers of a city, the charter practically denies a remedy to any person injured, contravenes Section 10, Article I, Constitution of Oregon, is therefore void, and leaves the liability as it existed at common law, whereby the city is accountable for such negligence."
The decision, however, recognized the validity of other charter exemption clauses; for instance, after reviewing O'Harra v.Portland, supra, and Rankin v. Buckman, supra, it stated:
"The rule thus announced, that a municipal charter may specially exempt the corporation from liability *Page 227 for a failure to keep its highways in repair, and that such enactment is not violative of any constitutional provision, has been recognized: Templeton v. Linn Co., 22 Or. 313 (29 P. 795, 15 L.R.A. 730); Parsons v. San Francisco, 23 Cal. 462. In Piercy v. Averill, 37 Hun. 360, 363, the court, referring to a preceding action, says: `Farther in the case of Bennett v. Whitney, 94 N.Y. 302, a street commissioner of Binghamton was held liable for negligence, although the charter exempted the city from liability.'"
In Pullen v. Eugene, 77 Or. 320, 146 P. 822, 147 P. 768,147 P. 1191, 151, P. 474, Ann. Cas. 1917D, 933, the plaintiff, who had been injured upon a defective sidewalk, sued the city which depended upon the following provision of its charter:
"The City of Eugene shall not in any event be liable in damages to any person for an injury caused by any defect or dangerous place at or in any sidewalk, * * * unless the mayor, chairman of the street committee, or street commissioner shall have had actual notice of such defect or dangerous place, and a reasonable time thereafter in which to repair or remove such defect or dangerous place before the happening of such accident or injury, and in no case shall more than $100 be recovered as damages, from the city for any such accident or injury."
The circuit court set aside a verdict and judgment in favor of the plaintiff, stating that it had erroneously deprived the city of the benefit of the above provision. The plaintiff appealed. The decision of this court, written by Chief Justice MOORE, after pointing out the difference between this charter and the two held invalid in Mattson v. Astoria, supra, and Batdorff v. OregonCity, supra, held that the Eugene charter did not infringe upon Art. I, § 10, Oregon Constitution. It was evidently the opinion of the court that its previous *Page 228 decisions had sufficiently developed the legal principles involved since, apart from the matter just mentioned, it contented itself with the following statement:
"To recover for a loss occasioned by official dereliction of duty, not involving more than $100, an action may be maintained against the defendant herein. If, however, the amount of injury caused by the negligence of the defendant or its agents exceeds that sum, an action may be maintained against the officers of the municipality whose duty it was to cause the street to be repaired, and to see that the highway was kept in suitable condition for public travel. Since such a remedy is availing, the section of the charter referred to does not violate the clause of the fundamental law of the state."
Although two petitions for a rehearing and a petition to recall the mandate were filed, the court adhered to its decision which affirmed the judgment of the circuit court.
In Humphry v. Portland, 79 Or. 430, 154 P. 897, the plaintiff, who had been injured upon a sidewalk, made as defendants the city, the mayor, the councilmen, the engineer and the abutting property owner. After the issues had been joined, the court dismissed as defendants the mayor and the councilmen upon their motion. After trial judgment was entered against the city alone, which, upon appeal, depended upon § 281 of its charter, being the identical section quoted in the second paragraph of this opinion. In the decision, written by Chief Justice MOORE, reversing judgment against the city, two members of the court concurred, a fourth concurred in the result, and a fifth dissented. From the opinion the following is quoted:
"By analogy and based on the doctrine asserted by Judge Deady in Eastman v. Clackamas County (C.C.), 32 Fed. 24, and recognized by Mr. Justice Lord *Page 229 in Templeton v. Linn County, 22 Or. 313, 321 (29 P. 795, 15 L.R.A. 703), we conclude a municipal corporation, in the absence of any statute governing the matter, is liable to a person sustaining an injury from a defective street or sidewalk, the repair of which it is incumbent upon the city to keep up, if it have the means of performing that duty or is granted the right of taxation or given the power of levying a special assessment for that purpose, and we adhere to the rule heretofore asserted, that under Article I, Section 10, of the Constitution of Oregon, a right of action to recover damages for an injury thus sustained cannot be so abridged by legislation as to deprive the injured party of all remedy. It is conceded, however, that by proper enactment the liability thus imposed upon a municipal corporation may be shifted to its officers or agents."
The opinion continued with a consideration of the distinction between governmental and corporate functions and expressed the belief that maintenance of a street is a governmental duty for the neglect of which the city is not liable.
Colby v. City of Portland, 85 Or. 359, 166 P. 537, was an action against the city, its commissioners and its engineer by an individual who had been injured upon a defective crosswalk. At the conclusion of the plaintiff's testimony the city's motion for a nonsuit was sustained and later judgment was entered against the officials. No appeal was taken from the judgment in favor of the city, but the officials appealed from the judgment against them. In reversing that judgment, Chief Justice McBRIDE took occasion to express his disfavor of § 281 of the Portland charter, being the exemption clause quoted in the second paragraph of this opinion. He made his observations in discussing the principles of law which hold that a public official is not responsible for the wrongdoings of his subordinates *Page 230 provided he exercised ordinary care in their selection. The following is the part of the opinion to which we refer:
"The city is out of the case as it stands here, neither party having appealed as to it, but it may well be doubted whether it is competent for the charter-making power to take away from plaintiff a complete remedy against the city, which is always solvent and responsible, and whittle down to the point where plaintiff will have a partial and doubtful remedy against the city officers or against a subordinate officer whose position is, perhaps, a little lower than a deputy inspector and a little higher than that of the dog-catcher. To the writer it seems that such a conclusion is contrary to justice and in direct opposition to the doctrine laid down in Batdorff v. Oregon City, 53 Or. 402 (100 P. 937, 18 Ann. Cas. 287)."