"Unless prohibited by some provision of the federal or state constitution, it is within the power of the legislature to provide that a city shall or shall not be liable for its failure to perform a municipal duty. It cannot, of course, destroy vested rights which would be a taking of property without compensation, nor can it impair the obligation of contracts. These are prohibited both by the federal and state constitutions. But no person has a vested right to a remedy for an injury which may or may not happen in the future because of some future tort."
The above constitutes a review of all of the decisions of this court determining the validity of charter exemption clauses. However, Eastman v. Clackamas County, 32 Fed. 24, Templeton v.Linn County, 22 Or. 313, 29 P. 795, 15 L.R.A. 730, Schroeder v.Multnomah County, 45 Or. 92, 76 P. 772, and Gerber v. MultnomahCounty, 143 Or. 452, 22 P.2d 1103, have also been cited. A precis of the first two decisions is set forth in Gearin v.Marion County, 110 Or. 390, 223 P. 929, from which we quote:
"The reasoning of the court in the first case supports plaintiff's theory, but this reasoning has not been adopted as the law of this state and the conclusion there reached by Judge Deady was not necessary to the decision of that case as the accident there complained of happened before the amendment of what is now Section 358, Or. L., and as this amendment, as so held by Judge Deady, did not have the effect to operate retrospectively, the remedy given by the statute as it existed prior to the amendment had not been defeated. In the latter case, notwithstanding the dissenting opinion of Mr. Justice Lord, the majority opinion held to the contrary of what is contended for here. In that case Mr. Chief Justice Strahan, among other things, *Page 236 said: `The liability created against a county by this statute, as it existed prior to the amendment in 1887, was recognized and enforced in McCalla v. Multnomah County, 3 Or. 424, and the rule there stated continued to be recognized until the amendment. This is the first case arising under the statute as amended that has reached this court. There being no common-law liability, unless the statute has created a liability, there is none; and the statute having been repealed, there is none under the statute, if it were competent for the legislature to repeal it.' That decision was concurred in by Mr. Justice Bean who said: `If the legislature can constitutionally take away both the common law and statutory right of action against a municipal corporation for an injury received from a defective highway, it certainly can withdraw the statutory remedy against a county. The provision of the constitution under consideration in this case does not seem to have been noticed or considered by the courts in O'Harra v. Portland, but the result of that decision is fatal to plaintiff's contention here, and I am not prepared to say that such a conclusion, so far at least as the statutory right of action is concerned, is incorrect, and therefore concur in the result reached by the Chief Justice.'"
In Schroeder v. Multnomah County, supra, this court, through Mr. Justice BEAN, said:
"It must, we think, be accepted as settled law that, unless made so by statute, a county is not liable for an injury resulting from a defect in a public road or highway, notwithstanding the law may require it to keep such road or highway in repair, and give it ample power to provide means with which to discharge the obligation. Such was the decision in Templeton v. Linn County, 22 Or. 313, 29 P. 795, 15 L.R.A. 730, and notwithstanding the argument of counsel, ably restating the grounds upon which it was sought to maintain that action, we are not disposed to overrule the decision. * * *" *Page 237
In Gerber v. Multnomah County, supra, the action was based upon § 44-3401, Oregon Code 1930, which authorized travelers injured upon defective county roads, who were able to meet the conditions exacted by that statute, to sue the county and recover not to exceed $2,000 damages. The decision manifested no fault with that section of our laws, but since the plaintiff had not shown compliance with its exactions, a judgment in his favor was reversed.
Let us now endeavor to deduce a rule from these decisions. Before so doing it is well to take note of the following principles which we deem well established in this jurisdiction:
(1) The maintenance of streets and sidewalks is a ministerial, not a governmental, function.
(2) In the absence of a valid exemption law, a city is liable for an injury incurred through its negligence in failing to maintain its streets and sidewalks in a proper condition.
It is seen from the above review that in O'Harra v. Portland,Pullen v. Eugene, Humphry v. Portland, Caviness v. Vale andPlatt v. Newberg, this court held valid charter exemption clauses. In the third of the above-cited decisions the clause which was held valid was the identical one with which we are now concerned. In addition the circuit court sustained the validity of the exemption clause in Colby v. Portland, and this court recognized the validity of such clauses in Rankin v. Buckman and Sheridan v. Salem. Since the injured person in Rankin v.Buckman did not make the municipality a defendant, an inference is possibly warranted that she believed that the decision inO'Harra v. Portland had removed all doubts concerning the validity of charter exemption clauses. The only exemption *Page 238 clauses which have been held invalid were those which attempted to render nonsuable, not only the city but also the negligent officials: Mattson v. Astoria, and Batdorff v. Oregon City. O'Harra v. City of Portland was decided in 1869, seventy years ago; Rankin v. Buckman in 1881, fifty-eight years ago; and Sheridan v. Salem in 1886, fifty-three years ago. In the intervening years many sessions of the legislature have occurred, many amendments have been made to our Constitution, and many enactments have been made by the people through the exercise of the initiative power, but no enactment has undermined the basis of the pronouncements in those decisions. To the contrary, after those three decisions had been announced 1893 Session Laws, p. 119, § 34 (p. 131) was adopted, which provides:
"* * * and such city or town shall not in any event be liable for any damages to any person for injury caused by any defect or dangerous place, at or in any sidewalk, crosswalk, street, alley, bridge, public ground, public building, or ditch, unless such city or town 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 any such city or town for such accident or injury."
Since Portland's charter was not conferred upon it by the statute of which the above is a part, that provision is not applicable to it: Umphlette v. City of Silverton, 154 Or. 156,59 P.2d 244. Nevertheless, the enactment of that act and of others which we shall now quote are indicative of the reliance which those concerned with municipal affairs probably placed upon *Page 239 the decisions of this court. Nineteen Twenty-three Session Laws, Ch. 101, p. 4, § 35-3404, Oregon Code 1930, being a part of our dental inspection law, provide:
"No school district, or any school director, shall be liable to any pupil, or to the parents or guardian of any pupil, for or on account of any claim of any nature whatsoever for damage on account of any action of any person in connection with dental treatment hereby authorized."
In 1908 the people, acting under the initiative power, adopted the following (§ 65-1234, Oregon Code 1930):
"If a vessel or cargo, while being towed by a vessel owned or operated by the Port of Portland, or while under the charge of a pilot employee of the Port of Portland, is injured or lost by reason of the fault of such tug, or the negligence or incompetency of such pilot, the Port of Portland shall not be liable for any loss or injury thereof in excess of $10,000.00."
These several decisions, all employing substantially the same principles, seem to justify the employment in the present action of the doctrine of stare decisis. That rule "finds its support in the sound principle that when courts have announced, for the guidance and government of individuals and the public, certain controlling principles of law or have given a construction to statutes upon which individuals and the public have relied in making contracts, they ought not, after these principles have been promulgated and after these constructions have been published, to withdraw or overrule them, thereby disturbing contract rights that had been entered into and property rights that had been acquired upon the faith and credit that the principle announced or the construction adopted in the opinion was the law of the land.": 14 Am. Jurs. Courts, p. 283, § 60. *Page 240
The doctrine of stare decisis attaches great weight to decisions which have invited those who administer governmental affairs to depend upon them as correct expositions of the law, and which likewise incline those who deal with governmental bodies to determine their demands and course of action upon the decisions already announced. While the doctrine of stare decisis attaches great weight to precedents (Hubley's Guardian v.Wolfe, 259 Ky. 574, 82 S.W.2d 830, 101 A.L.R. 1359), it does not demand that the courts adhere to them if satisfied that they are manifestly wrong. The plaintiff claims that our previous decisions, with the exception of Mattson v. Astoria andBatdorff v. Oregon City, are in error. In this claim she is vigorously supported by the brief of amici curiae.
The attacks upon these decisions are based upon the following contentions: (1) the Portland charter exemption clause conflicts with Art. I, § 10, Oregon Constitution ("every man shall have a remedy by due course of law for injury done him * * *"); (2) the exemption clause conflicts with § 5-502, Oregon Code 1930, which authorizes the institution of actions against a municipality "in its corporate capacity;" and (3) Art. XVIII, § 7, Oregon Constitution, preserves the following provision of Laws of 1853-1854, pp. 167 and 168 (concerning actions against municipal corporations): "An action may be brought * * * for an injury to the rights of the plaintiff, arising from some act or omission of such officers, or the body represented by them" and that, therefore, the provision just quoted authorizes the maintenance of this action.
The plaintiff seems to believe that the substance of her contentions was overlooked when this court considered the above-mentioned cases. It is true, as was *Page 241 pointed out by Mr. Justice McBRIDE in Colby v. Portland, thatO'Harra v. City of Portland made no mention of Art. I, § 10, Oregon Constitution, but, beginning with Mattson v. Astoria, the fourth of the above-cited decisions, every decision of this court concerning exemption clauses bestowed extensive consideration upon that section of our Constitution. Pullen v.Eugene, Humphry v. Portland, Caviness v. Vale and Platt v.Newberg, after considering that section, sustained the validity of the exemption clauses under consideration in them. Templetonv. Linn County also quoted and interpreted that section of our Constitution.
Section 5-502, Oregon Code 1930, and its predecessors have received much attention in the consideration of exemption clauses. The history of § 5-502, as far back as 1862, is given inBlue v. City of Union, supra, and a previous chapter is mentioned in O'Harra v. City of Portland, supra. Apparently the statute had its inception with Laws of 1853-1854, pp. 167-168, above quoted. In O'Harra v. City of Portland the court pointed out that two years after the legislature had enacted the statute with which we are now concerned, it conferred upon Portland its charter containing the exemption clause. The fact that the charter was subsequent in time apparently persuaded the court that it, and not the statute, was controlling. The statute was again considered in Rankin v. Buckman, and the court, after taking note of the fact that East Portland's charter was granted after the enactment of the statute, cited O'Harra v. City ofPortland for the purpose of indicating the validity of the charter's exemption clause. In Sheridan v. City of Salem the statute again received attention and the court found that its construction became established in McCalla v. County of Multnomah, *Page 242 3 Or. 424. The construction there placed upon it precluded the court from holding, as it was inclined to do, that cities were suable only for some "act or omission" of a strictly corporate character, and not for the breach of "duties they owed to the public, such as keeping public roads and streets in good repair." The statute was not again mentioned until we reached Blue v.City of Union, in which it received extensive attention in both the prevailing and the dissenting opinions.
The third contention of the plaintiff, that Article XVIII, § 7, Oregon Constitution, preserved Laws of 1853-1854, pp. 167-168, concerning the maintenance of actions against municipal corporations, was the basis, in part, of the dissenting opinion of Mr. Justice LORD in Templeton v. Linn County, but Chief Justice STRAHAN rejected that view by pointing out that Article XVIII, § 7, preserved only vested rights.
We have set forth the above for the purpose of indicating that all of the contentions presented by the plaintiff have in the past received consideration by this court.
As we stated before, the plaintiff and amici curiae do not concede that any of the above decisions, except Mattson v.Astoria and Batdorff v. Oregon City, were correctly decided. Their principal criticism of Humphry v. Portland and Platt v.Newberg is that in each of those decisions a statement was made that the maintenance of streets is a governmental function. That error, the plaintiff argues, must have led to an erroneous determination of the cases. But we believe that in each of the two criticised decisions the theory that the maintenance of streets is governmental in character was only one of the bases of the decision. *Page 243 In the Humphry case this court, after reviewing its earlier decisions, stated:
"It is conceded, however, that by proper enactment the liability thus imposed upon a municipal corporation may be shifted to its officers."
And in Platt v. Newberg the decision stated:
"When the charter that imposes the duty expressly exempts the municipality from liability for such injuries, the requisite consent of the state that the municipality may be sued is withheld. * * * The cases hold with little, if any, dissent, that the legislature may exempt a municipality from liability for defects in highways, but may also modify such liabilities or take them away. * * * 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. * * * 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."
We bring to a close the review of these decisions by quoting the following from 7 McQuillin, Municipal Corps., (2nd ed.), § 2906:
"Statutes in other states, where there is a common law liability, limit or wholly abolish the liability of the municipality. And it is well settled that the legislature has power, in the absence of constitutional restriction, to limit the liability of municipalities as to defective highways, or even wholly to exempt them from any liability for injuries resulting from defective streets. * * * So a charter provision which limits, or entirely takes away the liability of the municipality, is not objectionable as class legislation. * * * Having the power to deny to individuals a right of action against municipalities for injuries resulting from defective streets the legislature, if not forbidden by the *Page 244 Constitution, may impose any conditions which it chooses to prescribe. So home rule charters may require ten days' written notice to the municipality, prior to the accident, of the existence of a defect in a street * * *. And it is well settled that the legislature may require notice of the injury to be served on a certain municipal officer or officers, within a specified time after the injury. * * * Charter provisions exempting, or limiting the liability of the municipality for injuries resulting from defective streets and sidewalks, and imposing such liability on negligent public officers, or in case of sidewalks, on abutting land owners, are generally sustained as valid and constitutional. * * *"
From 43 C.J., Municipal Corps., p. 979, § 1759, we quote:
"A municipality may be specifically exempted by its charter from liability for injuries caused by defects in streets, or the legislature may limit or modify such liability and impose conditions, such as requiring the person injured to give notice of the injury or present his claim for damages in the time and manner prescribed, although it has been held that a statute denying the injured person any remedy at all, either against the municipality or its officers or agents, is invalid; * * *"
See to like effect 4 Dillon, Municipal Corps. (5th ed.), § 1709, and 13 R.C.L., Highways, p. 315, § 261. Additional authorities are cited in Platt v. Newberg, supra.
We believe that all of our previous decisions were correctly decided and that their reasons were sound, with the exception of those that deemed the maintenance of streets a governmental function. We shall not repeat the reasons which we approve — they are set forth with sufficient clearness in the preceding decisions — but now give additional ones which we believe also sustain the validity of the charter exemption clauses. *Page 245
The plaintiff's brief, supporting the statement with quotations from the charter, twice states: "The duty in the case at bar is imposed upon the defendant City of Portland by charter provisions and charter ordinances as follows * * *" The duty to which she refers is the maintenance of streets and sidewalks. This is not an instance, therefore, where the city negligently performed a duty which it had voluntarily assumed. If a city voluntarily enters into the business of operating a laundry, a garage, a gas plant or some other industry from which it hopes to derive an economic advantage, its voluntary entry into the venture and the commercial character of the latter afford good reasons for visiting upon the city all of the consequences ordinarily attendant upon the ill performance of corporate functions. But, as the plaintiff's brief states in the words above quoted, the duty which the city neglected was "imposed" upon it by its charter. The duty of maintaining streets, although a corporate one when performed by a city, is a duty likewise appropriate for performance by the state. In fact, as we have seen, it was the government which built and maintained the highways in early English history. Today the State of Oregon possesses the power to construct and maintain such of the city streets as constitute connecting links in state highways: 1931 Session Laws, Ch. 88, § 1. It is a matter of everyday observation that this power is exercised. We pause to observe that if an injury occurs upon a state-maintained street through the negligence of the state, there can be no recovery against it because § 5-502, Oregon Code 1930, does not authorize tort actions against the state; therefore, if another person, injured a few feet away upon an intersecting street maintained by the city, can secure recovery, as the plaintiff contends, we have a novel situation. When *Page 246 the state imposed upon Portland the duty of street maintenance it had the right to set forth in the city's charter the consequences which should follow when anyone suffered an injury through the city's neglect of the duty: MacMullen v. Middletown, 187 N.Y. 37, 79 N.E. 863, 11 L.R.A. (N.S.) 391; Henry v. Lincoln,93 Neb. 391, 140 N.W. 664, 50 L.R.A. (N.S.) 174. In all likelihood, when the lawmakers wrote the exemption clause they were not influenced by the reasons which the courts have assigned in support of such provisions, but were actuated by the practical considerations which prompted the early Americans to accept the doctrine of nonsuability. When these provisions were inserted in Oregon municipal charters most of our sidewalks were wooden affairs, which, together with the wooden crosswalks, were continuously getting out of repair. The first three of our decisions speaking of exemption clauses concerned wooden sidewalks, and Colby v. Portland, supra, decided in 1917, concerned a wooden sidewalk. The lawmakers, in imposing upon the cities springing up in the wilderness the duty of street and sidewalk maintenance, for practical purposes devised the exemption clauses. The New York decision just cited holds that (1) when a duty is imposed upon a city the charter may prescribe the consequences which shall attend an injury resulting from its breach; and (2) a grant of immunity from liability under such circumstances is valid. The Nebraska decision is to a similar effect. We believe that these decisions were correctly decided. Here, then, we have a sound basis, in addition to those given in our other decisions, for sustaining the validity of the exemption clause.
Again, although the maintenance of streets is a corporate function, well-kept streets contribute to the *Page 247 general welfare, security, convenience, etc. Were it not for what has been termed an "illogical exception" their maintenance would be deemed a governmental function. In Etter v. Eugene, 157 Or. 68, 69 P.2d 1061, we held that cities maintain their public parks in a governmental capacity. Streets as well as parks make their contribution to the general well-being. It is, we believe, because streets serve not only the corporate but also the governmental objectives of cities that all of our decisions have recognized that a city may be given, not absolute, but conditional immunity from liability for street accidents — conditioned upon liability reposing in someone who owed a duty to maintain them. In Caviness v. Vale, supra, the liability of the adjacent property owner sufficed. The Portland charter besides recognizing that the negligent public officials should respond for the injury occasioned by their neglect, also imposes upon the abutting property owner, after receipt of notice from the city engineer, the duty of repairing the sidewalk. The charter exemption clause with which we are concerned, after exempting the city, states:
"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 * * * and also the officer or officers through whose official negligence such defect remains unrepaired shall be jointly and severally liable to the party injured * * *."
Section 116 of Portland's charter provides:
"It is not only the duty of all owners of land within the city to keep in repairs all sidewalks, constructed or existing in front of, along or abutting upon their respective lots * * * but such owners are hereby declared to be liable for all damages to whomsoever resulting, arising from their fault or negligence in failing *Page 248 to put any such sidewalk in repair, after the owner or agent thereof has been notified as provided * * *"
At common law the abutting owner was not similarly responsible: McQuillin, Municipal Corporations (2nd ed.), § 1971, and Rees v.Cobbs Mitchell Co., 131 Or. 665, 283 P. 1115. A pedestrian injured upon a defective sidewalk where the abutting property owner owes a duty of maintenance and is declared liable in the event of neglect, has a remedy against the neglectful property owner: Caviness v. City of Vale, supra; anno. 41 A.L.R. 222. Accordingly, anyone injured upon a defective sidewalk in Portland has a remedy not only against the negligent official but also against the property owner if, after notice from the city engineer, he failed to make the needed repairs: Caviness v. Cityof Vale, supra; McQuillin, Municipal Corporations (2nd ed.), §§ 2901 and 2916. Accordingly, while the charter provision under consideration withholds a remedy against the city, it recognizes a liability in the negligent officials and creates a right of action against the abutting property owner. Thus, the demands ofCaviness v. City of Vale, supra, have been met. Here, then, is another reason for sustaining the validity of the exemption.
But the plaintiff contends that Art. I, § 10, Oregon Constitution, prevents the lawmakers from abolishing any common law rights, and that since the charter exemption clause deprives those injured, through the negligent failure of cities to maintain their streets, of their common law right of action against the cities, the clause is invalid. Plaintiff seems to believe that that point of view escaped attention in the consideration of our previous cases. The territorial statute (Laws 1853-1854, pp. 167-168, concerning actions against municipal *Page 249 corporations) upon which the plaintiff, in part, depends was not rendered immune by Art. XVIII, § 7, Oregon Constitution, from legislative modification or repeal: Covey Garage v. Portland,157 Or. 117, 70 P.2d 566. In support of her primary contention, the plaintiff relies largely upon Eastman v.Clackamas County, supra, and Justice LORD'S dissenting opinion in Templeton v. Linn County, supra. But we have seen from the language which we previously quoted from Gearin v. MarionCounty, supra, that Justice LORD'S views and the interpretation which Eastman v. Clackamas County, supra, placed upon Art. I, § 10, do not represent the construction of this court. In Silverv. Silver, 280 U.S. 117, 50 S. Ct. 57, 74 L. Ed. 221, 65 A.L.R. 939, the court said that it was unnecessary to "elaborate the rule that the Constitution does not forbid the creation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative object." We held to similar effect in sustaining the validity of a statute which was attacked under Art. I, § 10, Oregon Constitution: Perozzi v.Ganiere, 149 Or. 330, 40 P.2d 1009. Article I, § 10, Oregon Constitution, was not intended to give anyone a vested right in the law either statutory or common; nor was it intended to render the law static. Notwithstanding similar constitutional provisions in other states, the courts have sustained statutes which eliminated the husband's common law liability for the torts of his wife and which placed the wife upon an economic level with her husband. They have likewise sustained statutes which have abolished actions for alienation of affections, actions for breach of promise, etc. The legislature cannot, however, abolish a remedy and at the same time recognize the existence of a right:Stewart v. Houk, 127 Or. 589, 271 P. 998, 272 P. 893, *Page 250 61 A.L.R. 1236. We, therefore, conclude that this contention reveals no infirmity in the charter exemption clause.
The plaintiff contends that the charter exemption clause, granting as it does the privilege of nonsuability to the city, is invalid because § 5-502, Oregon Code 1930, authorizes suits and actions against municipal corporations in their corporate character. We observe that the statute adds "for an injury to the rights of a plaintiff arising from some act or commission." Of course, the plaintiff's injury was not caused by "some act or commission" of the city. According to the plaintiff, it was incurred through the city's neglect; that is, through its omission. But 1929 Session Laws, ch. 227, § 2, modified the statute by substituting the word "commission" for the word "omission." We shall close our eyes to this circumstance as we proceed. As was indicated in O'Harra v. Portland, supra, the city was given its charter containing the exemption clause two years after the legislature enacted the statute which, after amendment by Laws of 1887, p. 45, and reamendment by 1929 Session Laws, ch. 227, § 2, is now § 5-502. Throughout its entire legislative history the following words have remained part of the act: "An action may be maintained against * * * the public corporations * * * mentioned in sections * * * for an injury to the rights of the plaintiff arising from some act or omission of such other public corporation." Some of the cases reviewed in preceding paragraphs were maintained under that part of the act and its common law counterpart. Thus by a process of legislative accretion, matter has been added, but the above-quoted language has never been altered with the exception of the substitution of the word "commission" for the word "omission." In the absence of *Page 251 a clear indication to the contrary, a statute which is incorporated within an amendatory act, without any substantial or material change in its phraseology, takes its antiquity from its original enactment and is neither deemed repealed nor reenacted by being incorporated in the amendatory act. The principle is better stated in State v. McGinnis, 56 Or. 163, 108 P. 132, from which we quote:
"Whatever the rule may be in other jurisdictions, it is settled in this State that where a section of an act is amended `so as to read as follows,' and the later law sets forth the changes contemplated, the parts of the old section that are incorporated in the new are not to be treated as having been repealed and re-enacted, but are to be considered as portions of the original statute, unless there is a clear declaration to the contrary, in the absence of which it is only the additions that have been made to the original section that are to be regarded as a new enactment."
See to like effect Brun v. Lazzell, 172 Md. 314,191 A. 240, 109 A.L.R. 1453; In Re Wilson's Estate, 102 Mont. 178,56 P.2d 733, 105 A.L.R. 367; Duggan v. Ogden, 278 Mass. 432,180 N.E. 301, 82 A.L.R. 765.
Both the 1887 and the 1929 amendatory acts employed the words "so as to read as follows." Accordingly, the above rule of statutory construction controls the situation before us, and the part of § 5-502 above quoted is, therefore, deemed to have been in effect since 1862. Therefore, it is older than the Portland charter exemption clause. The latter is not only more recent but it is a special act. It is true, as was indicated in City ofPortland v. Welch, 154 Or. 286, 59 P.2d 228, 106 A.L.R. 1188, and Burton v. Gibbons, 148 Or. 370, 36 P.2d 786, that generally charter provisions are amenable to general statutes. But in the present *Page 252 instance the Portland charter provision is a special enactment which was adopted subsequently to the general statutes. O'Harrav. Portland, supra, State v. Sturges, 9 Or. 537, and Hall v.Dunn, 52 Or. 475, 97 P. 811, 25 L.R.A. (N.S.) 193, authorize the conclusion that § 5-502 did not repeal the exemption clause.
The above disposes of all attacks which have been made upon the exemption clause. Even the writers who have most bitterly assailed the doctrine of nonsuability declare that it has become so firmly entrenched in our jurisprudence through statutes, charter provisions, and the decisions of the courts that its opponents must resort to the legislature rather than to the courts. See 22 Virginia Law Rev. 910. Certainly, in Oregon, where this court has repeatedly sustained charter exemption clauses, and where no conflict exists between them and the Constitution, we have no power to disregard the exemptions. We conclude that the exemption clause is valid.
The plaintiff, after calling attention to the fact that the defect which caused her to trip and fall was in the sidewalk curb, contends that since the charter mentions only "any sidewalks, street, avenue, lane, alley, court or place" and does not employ the word "curb", the exemption clause is not applicable in this case. If the curb was not a part of the sidewalk, and we believe that it was, it certainly was a part of the street. This contention is without merit.
It follows from the above that the circuit court did not err when it held that the city's charter protected the city from liability in this instance. It properly sustained the city's motion for a nonsuit.
So far we have referred to the city as the defendant, although when the action was instituted the city's *Page 253 mayor and four commissioners, together with the city engineer and the owner of the adjacent lot, were also defendants. After some rulings adverse to the plaintiff had been made, a third amended complaint was filed which named as the defendant only the city. Then the latter filed its answer and the plaintiff a reply. Eventually the cause proceeded to trial "against the defendant City of Portland alone." We quoted from plaintiff's brief. After the trial had resulted adversely to the plaintiff her counsel, in entitling the notice of appeal and similar papers, inserted the names of all of the original defendants with the exception of the name of the adjacent property owner. Upon the city's motion these names were stricken. The plaintiff now asks us to review all of the intermediate orders.
We believe that the plaintiff has not pursued the proper course to entitle her to challenge the regularity of the intermediate orders. When she filed the third amended complaint which eliminated as defendants all except the city, her act in so doing must be regarded as having been voluntary; thereupon all of her previous pleadings ceased to perform any further function as pleading in the case. The following language in Wells v.Applegate, 12 Or. 208, 6 P. 770, has been many times cited with approval:
"A part of the second amended answer was struck out on motion, and a demurrer was sustained to another part setting up a counter-claim. Defendant thereupon filed another answer purporting to be a new answer, but which it is now argued is not such, because it was but a copy of the former answer with the parts objected to left out; and even if it were a new answer, it is argued that exceptions to the order striking out and in sustaining the demurrer was not waived. Suppose the answer to be what it purports to be — a new answer. Then the rule is, when a demurrer is overruled and the *Page 254 party pleads over, the demurrer is abandoned, and it ceases to be a part of the record. (Young v. Martin, 8 Wall. 357.) So, `when a pleading is amended, the original pleading ceased to be a part of the record, because the party pleading having the power, has elected to make the change.' * * * Taking a bill of exceptions will not aid a party if he pleads over. (Plummer v. Roads, 4 Iowa 589, ) Then is the answer a new answer? The act of pleading over is conclusive of an intention to abandon the former answer. (And see Laws Oreg. p. 126, § 102) The pleadings on which the parties went to trial became the sole pleadings in the case, as if no others ever existed. By filing the new answer the former answer was in effect withdrawn, and all motions and demurrers relating to it accompanied it."
In Slemmons v. Thompson, 23 Or. 215, 31 P. 514, to the plaintiff's petition for a writ of mandamus the defendant made a return and later the plaintiff filed a reply. Then a trial occurred. Later the plaintiff, pursuant to leave, filed an amended petition and writ which set up a different set of facts. To the amended pleading the defendant's demurrer was sustained and later the court dismissed the writ, giving judgment against the plaintiff. From this judgment the plaintiff appealed, making as a part of the record the original proceedings. In disposing of the matter, the decision stated:
"Ordinarily, when a pleading is amended, the original pleading ceases to be a part of the record, because the party pleading, having the power, has elected to make the change: Wells v. Applegate, 12 Or. 209 (6 P. Rep. 770). Much of the brief of the defendants is consumed in the statement of this matter, as much of their argument based on it is urged in support of the ruling of the court in dismissing the writ. Under such circumstances, we have felt bound to state it; and *Page 255 if we could consider it, the case would come to an end at once, as there can be no question but that the ruling of the court on the first application was correct. Besides, if there were such defenses as disputed ownership of the shares requiring litigation to settle, or the pendency of a suit in equity between the same parties for an adjudication of the same matter, they ought to have been pleaded; otherwise they cannot be considered. We must look, therefore, to the facts alleged in the amended writ, which by the demurrer stand admitted, to determine whether the plaintiff shows himself entitled to relief by mandamus."
It is unnecessary to cite other decisions of this court holding that a previous pleading is superseded by an amended one and is, therefore, no longer regarded as a pleading. They are numerous. However, the following show that our decisions are in accord with the trend of authority: 1 Bancroft's Code Pleading, p. 810; 49 C.J., Pleading, p. 558, § 773; and 47 C.J., Parties, p. 166, § 307. We conclude that our practice does not authorize us to review the merits of the intermediate orders.
It follows from the above that the judgment of the circuit court is sustained.
RAND, C.J., and KELLY, BELT, LUSK, BEAN and BAILEY, JJ., concur. *Page 256