Rehearing denied April 20, 1915.
On Petition for Rehearing.
(147 Pac. 768.)
The Circuit Court having been affirmed in setting aside the judgment rendered therein and granting a new trial, the appellant files in this court a petition for rehearing. Upon the hearing of said application the rehearing was denied and the former opinion sustained.
Rehearing Denied.
*329Mr. L. M. Travis and Mr. A. K. Meck, for the appellant.
Messrs. Skipworth & Lewis, for the respondent.
Department 1. Opinion by
Mr. Chief Justice Moore.6. In a petition for rehearing it is maintained that, though the charter of the City of Eugene confers upon the common council authority to repair a street and to defray the expense thereof either by taxing all the nonexempt property in the municipality or by imposing upon the premises specially benefited an assessment for the improvement made (Special Laws Or. 1905, p. 255, c. 7, § 48, subd. 51), the mayor and councilmen upon whom such obligation primarily devolves are not liable for any injury sustained by reason of their nonfeasance in failing to discharge that duty, nor are they responsible for the misfeasance of their subordinates, since the officers particularly designated receive no compensation for their services: Id., § 34.
The ease relied upon to support the principle asserted is Nowell v. Wright, 3 Allen (Mass.), 166 (80 Am. Dec. 62), which was an action to recover damages sustained by the plaintiff’s wife by falling into a river at night, in consequence of the negligence of the defendant, a bridge-tender, who, while operating the draw of the span, failed to shut the gates thereat or to hang out lanterns as warnings of danger. The court, having found that the appointment of the keeper of the bridge was not honorary, nor that his services were gratuitous, determined that, as a public officer, he was responsible for his acts of misfeasance, on the ground that his labor was voluntary and attended with compensation, and his duty was entire, absolute, *330perfect and personal, and not only were Ms services such as he was under obligation to perform, but he was also clothed with ability to discharge the duty both in respect to the means at his command and the legal authority to act, irrespective of superior officers. That case has been cited as a recognized authority by the Supreme Judicial Court of Massachusetts in several of its decisions, but we have not found an instance in which the want of compensation by an officer for the performance of the services required of him has been considered as a prereqMsite to the liability imposed. The rule so adopted in that state has been adhered to, but the decisions of that court have been put on other grounds. Thus in Moynihan v. Todd, 188 Mass. 301, 305 (74 N. E. 367, 108 Am. St. Rep. 473), in referring to the preceding case relied upon herein, it is said:
“¥e are of opinion that the principle which underlies the rule that public officers and other agencies of government are not liable for negligence in the performance of public duties goes no further than to relieve them from liability for nonfeasance and for the misfeasance of their servants or agents. For a personal act of misfeasance, we are of opinion that a party should be held liable to one injured by it, as well when in the performance of a public duty as when otherwise engaged. We think that the general course of decisions in this commonwealth is not in conflict with this view. But, for acts of misfeasance of a servant or agent in such cases, there is no liability. This is because the rule respondeat superior does not apply.”
In Bartlett v. Crozier, 17 Johns. (N. Y.) 439, 450 (8 Am. Dec. 428), it was held that a civil action would not lie against an overseer of highways by an individual who had sustained an injury in consequence of the negligence of such officer in failing to keep a *331bridge in repair. In deciding that case, Chancellor Kent observes:
“When the laws render a public officer liable to special damages for neglect of duty, the cases are those in which the services of the officer are not uncompensated or coerced, but voluntary and attended with compensation, and where the duty to be performed is entire, absolute, and perfect.”
The case last mentioned is referred to in Adsit v. Brady, 4 Hill (N. Y.), 630, 632 (40 Am. Dec. 305), where it is said:
“When an individual sustains an injury by the misfeasance or nonfeasance of a public officer, who acts or omits to act contrary to his duty, the law gives redress to the injured party by an action adapted to the nature of the case.”
In Robinson v. Chamberlain, 34 N. Y. 389, 396 (90 Am. Dec. 713), it was ruled that a contractor who, pursuant to law, had been employed by the state and received a compensation for performing a public duty, was liable to any person sustaining special damage in consequence of his failure to discharge such obligation.
The case of Piercy v. Averill, 37 Hun (N. Y.), 360, was an action against the mayor and aldermen of the City of Ogdensburg, New York, to recover damages for a personal injury resulting from the defendant’s failure to cause snow and ice to be removed from a sidewalk, whereby the plaintiff slipped, fell, and was hurt. A demurrer to the complaint having been overruled, an interlocutory judgment was rendered, in reversing which it was said:
“The general rule in this state is that public officers, charged with a ministerial duty, are answerable in damages to anyone specially injured by their careless*332ness and negligent performance of, or an omission to perform the duties of, their office. ’ ’
Further in the opinion it is observed:
“The defendants again urge that they are not liable for a neglect of their duty, because by the city charter the city is declared not to be liable for any injury caused by a sidewalk being out of repair, or by slipping upon snow or ice thereon. They argue that, if the principal is not liable, they [the agents], are not. It is hardly accurate to say that the city and the common council stand merely in the relation of principal and agent. * * But, if we adopt the view that the common council are the agents of the city, still there is no reason why an agent should not suffer for damages occasioned by his wrongful act, even though his principal be not liable. If a statute should relieve a- railroad company from any liability for the wrongful act of its servants, there would be no reason why the servants should not continue liable for their own wrongful acts. If the doctrine of respondeat superior were abolished, the doctrine that he who does an injury should pay the damages he has caused would be unaffected. ”
It is also remarked:
“A further argument is that public policy should forbid us to hold the defendants liable, inasmuch as such a rule of liability would drive from the common council persons of ¡responsibility. "Wie cannot give much weight to this argument. The defendants say we ought to be allowed to accept office and knowingly to neglect our duties, without any liability to those whose limbs are broken through our negligence, because no responsible persons will accept office, except on the condition that they may neglect its duties with impunity. It is enough to say in reply to this that it is better to have irresponsible officers who attend to their duties than responsible officers who do not.”
*333In the decisions last mentioned no reference is made to the doctrine announced in the case of Bartlett v. Crozier, 17 Johns. (N. Y.) 439 (8 Am. Dec. 428), to the effect that, in order to render a public officer liable to special damages for neglect of duty, it must appear that his services were voluntary and for compensation. We conclude, therefore, that the principle announced by the Chancellor in the original case was in the later case regarded as no longer controlling.
If the payment of compensation to a public officer for a performance of the duties required of him is to determine the question of liability for his negligence, then the amount of his salary is immaterial, so that, if he annually received a nominal sum only, his responsibility would be the same as if he were well paid for his services. The mere statement of such inequitable consequences that would necessarily result from the case supposed conclusively illustrates the absurdity of the doctrine maintained. If the mayor and the councilmen have funds or the authority to procure them, and, neglecting their duty, make no effort to obtain such means, they are liable in failing to repair a street, if they had notice of the defect: Bates v. Horner, 65 Vt. 471 (27 Atl. 134, 22 L. R. A. 824).
In Grant v. Baker, 12 Or. 329 (7 Pac. 318), it was held that an action would lie against such officers to recover damages resulting from personal injury alleged to have been caused by their failure to keep a street in repair, though nothing was said in the opinion with respect to any compensation having, been paid to the councilmen.
The mayor and councilmen of the City of Eugene are not parties hereto, and anything said or intimated in this opinion will not conclude them from controverting their liability for the damages sustained by the *334plaintiff, if she institutes an action against them. Without deciding the question, however, it is believed that she has a prima facie right of action against them.
. The former opinion is therefore adhered to and a rehearing denied.
Rehearing Denied. Former Opinion Sustained.
Mr. Justice Benson, Mr. Justice Burnett and Mr. Justice McBride concur.