*36DISSENTING OPINION OF
WILDER, J.Assuming, what is perhaps not technically averred, that the negligent act complained of was done in the course of maintaining and constructing the road, the question is whether the declaration sets forth a cause of action.
In the absence of statute, as a general rule, which is conceded by both plaintiff and defendant, counties as distinguished from what are called full municipal corporations, such as cities, are not liable in actions of this kind, the divergence of opinion being whether this defendant is within that rule. Counties are created for public purposes without regard to the actual wishes of their inhabitants and are in substance but agencies of the government for the purpose of aiding in the general administration thereof. The clothing of them with a corporate form is only done so that they may better perform their duties. They usually comprise large areas of territory which are not thickly settled and in which the relations of life and business are comparatively simple. On the other hand, municipal corporations proper are generally incorporated at the request or at least with the assent of their inhabitants by special charters or voluntarily organized under general laws. They have a greater variety of powers and duties, are usually confined within smaller and more compact limits, are more thickly settled, and the relations of life and business in them are more complex. Because of the difference in the nature of the two organizations it has been generally held that, as the functions of the one are in the main governmental and of the other corporate, an action of tort for negligence lies against a city but not against á county. This distinction, which seems to be upheld by reason of public policy, when viewed from the standpoint of reason, does not appear to be sound. Cities as much as counties are auxiliaries of the general government in the business of internal administration. In both cases their rights, privileges and functions are under the control of the legislature and by that body subject to be *37changed, modified or repealed as the public welfare may be supposed to require, and neither one can justify its existence or any rights or privileges conferred upon it by anything like a contract. However that may be, the distinction is well established. Coffield v. Territory, 13 Haw. 478, 480. I prefer, however, not to rest the question of liability or nonliability in this case upon whether the defendant is within or without that rule, but upon the broad ground that the function of maintaining public highways, in the performance of which the alleged injury occurred, is a governmental one in this jurisdiction, with the necessary consequence that defendant is not liable.
Before the passage of the county act the maintenance and repair of public highways devolved upon the Territory. The Territory is not liable for injuries from defective streets. Coffield v. Territory, 13 Haw. 478. At that time road boards throughout the Territory and a road supervisor in the district of Kona on the Island of Oahu had charge of the work of repairing and maintaining public highways in their respective districts subject to more or less supervision by the superintendent of public works. R. L., Ch. 39, 48, 50. These road boards were required to expend the road taxes, which were a special deposit in the treasury, and moneys appropriated by the legislature, in making and repairing roads and bridges. They were agents of the general government discharging public duties for the public benefit. Dillingham v. Hawaiian Government, 9 Haw. 101, 306. Since the passage of the county 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 expended in any other district” or for any other purpose. Laws of 1905, Act 89, Sec. 5. 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 *38fox 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 1905, Act 93, Sec. 3. The function of repairing and maintaining public highways by the Territory is undoubtedly 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 I think is the same now as before, namely, governmental. By the performance of this work counties receive no special benefit or profit any more than the Territory did formerly. Probably it is true that the residents of a county use its highways more frequently than residents of other parts of the Territory and in that sense may reap a greater benefit from them. But this is more emphatically true in respect, for instance, of policemen and firemen, for whose negligent acts counties would not be liable.
In Arkansas, California, Connecticut, Indian Territory, Massachusetts, Michigan, New Jersey, South Carolina and Vermont the duty of repairing and maintaining public highways is regarded as a governmental one, and in the absence of statute a municipality is not liable for negligence in respect thereto. Arkadelphia v. Windham, 49 Ark. 139; 4 Am. St. Rep. 32; 4 S. W. 450; Winbigler v. Los Angeles, 45 Cal. 36; Hewison v. New Haven, 37 Conn. 475; Blaylock v. Muskogee, 117 Fed. 125; Hill v. Boston, 122 Mass. 344; Detroit v. Blackeby, 21 Mich. 84; Pray v. Jersey City, 32 N. J. L. 394; Young v. Charleston, 20 S. C. 116; 47 Am. Rep. 827; Bates v. Rutland, 62 Vt. 178.
In the absence of statute a municipality is not liable for negligent acts of its'policemen, firemen, health, school and charity officials. This is on the theory that the duties performed by these persons are governmental. Yet they are no more governmental than in the case of highways in this Territory.
*39Plaintiff, 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 repair it should be held liable for negligence in repairing, that is, that there is a liability in case of a misfeasance even if otherwise as to a 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 governmental 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.) 268, it was held that no distinction can be made between negligent and intentional acts.” See also Alberts v. Muskegon, 146 Mich. 210, and Young v. Charleston, 20 S. C. 116; 47 Am. Rep. 827.
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 watercourse 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 defendant’s 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 plaintiff’s land in place of being done on land not owned by the plaintiff, would be ground for an action 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. Muskegon, 146 Mich. 210, is diametrically opposed to the conclusion 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 defendant was operating a steam roller. Through the negligent action of defendant sparks *40from the steam roller set fire to the barn and burned it np. • The court held that the city was- not liable. As it well said:
“The case at bar is not one of damages resülting from a direct trespass or from misfeasance of the city amounting to a tres: pass. It is a case of consequential injury resulting directly from the negligent conduct of the defendant’s 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 here, .the damages did not result from an act of the defendant amounting to a trespass.
Without discussing the cases cited by the majority to the effect that upon the facts alleged here an action lies against a municipal corporation in the absence of statute, it is sufficient to say that most of them are from states in which it is held that in the absence of statute an action lies against a municipal corporation for a failure to repair a highway, and naturally those courts hold that there is a right of action in a case like the one at bar. As to'the cases cited by the majority from Massachusetts and Michigan and from other states which follow the rule of liability adopted there in case of a failure to repair, they, in so far as contrary to my conclusion, are in effect overruled and disposed of by the later cases to which I have referred.
I think that if the legislature had intended that counties should be liable in actions of this kind it would have expressed such intention in plain terms.
Plaintiff’s claim that his property was taken in violation of the fifth amendment to the constitution is without merit.
Eor the foregoing reasons it is my opinion that the exceptions should be overruled.