"I cannot concur in the conclusion reached in this case by the Chief Justice. A contrary rule was established in the case of O'Harra v. City of Portland, 3 Or. 525, where it was held that a section of the charter of the City of Portland exempting that municipality from liability for any personal injury arising from a defective street was operative. That determination has prevailed in this state nearly forty-eight years and should, in my opinion, be controlling."
Caviness v. City of Vale, 86 Or. 554, 169 P. 95, was an appeal by an individual who had been injured upon a defective sidewalk from a judgment in favor of the city, after its demurrer to the complaint had been sustained. The defendants were not only the city but also its councilmen and the owner of the lot adjoining the defective sidewalk. The charter provided:
"It is not only the duty of all owners of land within the city to construct sidewalks and to keep in repair *Page 231 all sidewalks constructed or existing in front of, along or abutting upon their respective lots or parts thereof and parcels of land, but such owners are hereby declared to be liable for all damages to whomsoever resulting, arising from their fault or negligence in failing to construct or put such sidewalks in repair, and no action shall be maintained against the City of Vale by any person injured through or by means of the lack of or defect in any sidewalk."
In affirming the judgment, Chief Justice McBRIDE, author of the decision, declared that Batdorff v. Oregon City, supra,
"seemed to settle firmly the rule in this state, that before a city can exempt itself from a liability which exists both at common law and by virtue of our Constitution, it must provide an equivalent remedy; one reasonably adequate to serve the purpose of the one taken away. In subsequent cases it has been assumed that where a city charter provided in general terms that any officers of the city charged with the duty of keeping a street in repair, should be liable for injuries arising from their neglect to perform such duty, furnished an equivalent remedy, and that such provision was sufficient to exempt the city from responsibility. In Colby v. City of Portland, 85 Or. 359 (166 P. 537), it was pointed out that such a provision did not furnish a remedy substantially equivalent to the one taken away, for the reason that while a city was liable on the principle of respondeat superior for the wrongful neglect of its officers to keep streets in repair, the members of the council were not so liable; * * *" He continued that in Colby v. City of Portland "we intimated a doubt as to the constitutionality" of the Portland charter exemption clause, and concluded that a city "can not shift responsibility having once assumed it, without giving persons who may be injured by defective walks some reasonable, adequate remedy for such injury." The decision sustained the Vale charter *Page 232 exemption provision by pointing out that it placed upon the property owner "the duty to build the walk in the first instance and to keep it in repair thereafter. * * * There is justice under such circumstances in requiring the owner to be responsible for any damage which may ensue by reason of his neglect. * * * The owner of the abutting property is prima facie solvent, and it is not required that the remedy afforded should go to the extent of guaranteeing the immediate collection of any judgment that might be obtained * * *."
In Platt v. Newberg, 104 Or. 148, 205 P. 296, the plaintiff, injured upon a defective sidewalk, sued the city, its mayor and its councilmen. At the conclusion of the plaintiff's evidence the court sustained the motion for a nonsuit of the officials. The trial resulted in a verdict and judgment against the city. The latter appealed from that judgment and the plaintiff appealed from the judgment in favor of the officials. The charter vested in the city exclusive control over its streets, imposed upon it the duty of maintaining them, and gave to it ample taxation power to secure the necessary funds. The powers granted were vested in the mayor and council. The charter provided:
"The City of Newberg shall not in any event be liable in damages to any person for an injury caused by any defect or dangerous place, * * * unless said city shall have had actual notice of such defect or dangerous place and had a reasonable time thereafter in which to repair * * * and in no case shall more than one hundred dollars be recovered from the city for such accident or injury."
In sustaining the validity of this exemption clause and in reversing both judgments, the decision, written *Page 233 by Mr. Justice McCOURT, observed that the principle embodied in Art. I, § 10, Oregon Constitution, was borrowed from Magna Charta and that a rule of equal dignity was the doctrine of nonsuability. After citing all of the Oregon decisions reviewed in the preceding paragraphs together with Coleman v. La Grande,73 Or. 521, 144 P. 468, and Templeton v. Linn County, 22 Or. 313, 29 P. 795, 15 L.R.A. 730, the decision continued:
"Relying upon the rules of law declared in the foregoing decisions, the legislature so long as it exercised the power to create municipal corporations, incorporated in many municipal charters enacted by it, provisions exempting the municipality from liability for failure to discharge the duty of keeping streets in repair, and the power of the legislature in that respect has been recognized by this court from an early day, and it would seem that the question of the right to exercise that power was firmly settled in this state."
The decision stated that although the plaintiff had argued thatColby v. Portland and Caviness v. Vale overruled earlier decisions "upholding the authority of the legislature to exempt a municipality from liability," the court believed that "those decisions do not have that effect." It indicated a belief that the duty of maintaining highways in repair is governmental in nature. We again quote from the decision:
"The cases hold with little, if any dissent, that the legislature may exempt a municipality from liability for defects in highways, or may also modify such liabilities or take them away; * * *"
That statement was fortified with citation of several decisions and texts together with quotations from Schigley v. Waseca,106 Minn. 94, 118 N.W. 259, 16 *Page 234 Ann. Cas. 169, 19 L.R.A. (N.S.) 689; MacMullen v. Middletown,187 N.Y. 37, 79 N.E. 863, 11 L.R.A. (N.S.) 391, and Dillon on Municipal Corporations (5th ed.), § 1709. The decision continued:
"The foregoing authorities amply sustain the power of the legislature to exempt the city from liability in the discharge of governmental duties, or to restrict or modify any liability existing against the city, whether the same arises by implication or by express statutory provision.
"The authorities reviewed establish that the provision of the Constitution upon which plaintiff relies (Section 10, Art. I, Const.) has no application to a case which involves the sovereign privilege of the state and its subordinate agencies of immunity from private action. The rule of law, that `every man shall have a remedy by due course of law for injury done him,' is subordinate to the doctrine that the state cannot be sued without its consent. Thus when consent is given to sue, either the state or a municipality, when acting as a state agent, it is a matter of legislative favor, and may be withdrawn at any time, or modified or restricted at the will of the legislature. * * * It follows that the provisions of the charter limiting the liability of the defendant city to $100 for injuries due to the nonrepair of streets, and exempting it from liability altogether unless actual notice was had of the defect, was a valid exercise of legislative power * * *."
Justices McBRIDE and BEAN dissented. A third member of the court did not participate in the decision.
In the recent case of Blue v. City of Union, 159 Or. 5,75 P.2d 977, Mr. Justice LUSK, in delivering the majority opinion, after describing the duty of street maintenance as corporate in character, said that in Oregon a city's liability for failure properly to perform that duty has "never been denied except in those instances where the city has been exempted by a valid provision *Page 235 in its charter."