dissenting:
I cannot concur in the conclusion reached by the majority of the court nor with what is said in the opinion. By section 2 of the Road and Bridge, act it is declared: “The commissioners of highways shall have charge of the roads and bridges of their respective towns, and it shall be their duty to keep the same in repair and to improve them, so far as practicable,” etc. Highway commissioners in charge of roads and bridges owing the duty to keep the same in repair, in the discharge of their duties engage in the performance of a ministerial duty, and are generally liable for negligent performance thereof, or for negligently failing to perform the same, to one to whom the duty is owing and upon whom they inflict a special injury. Definite duties prescribed by statute to be performed by a public officer, and arising from conditions existing, either admitted or proven, are such that nothing is left to discretion. (State v. Johnson, 4 Wall. 475; Sullivan v. Shanklin, 63 Cal. 247; Grider v. Tulley, 77 Ala. 422; Pennington v. Streight, 54 Ind. 376.) In Fairchilds v. Keith, 29 Ohio St. 156, it was held that the entering of judgment in proper form on the docket and issuing execution were ministerial acts, for whose non-performance a justice of the peace was liable to one injured by such neglect. In Harlow v. Birger, 30 Ill. 425, it was held, where it was the duty of a justice of the peace taking the acknowledgment of a chattel mortgage to enter the same on his docket, that his neglect to make such entry would give a right of action against him to one injured by reason of such neglect, because the act was purely ministerial. It was said by this court in Tearney v. Smith, 86 Ill. 391: “Commissioners of highways are only in a very limited sense judicial officers. Repairing a highway is not of that character. For the negligent performance of ministerial acts they are personally responsible if injury results to others.”
The duty of keeping the highway and bridges in repair existing as a ministerial duty imposed by law, if the necessary funds to make such repairs are under the control of the commissioners or could be procured by using the official means at their command, and they negligently fail to repair, and there is knowledge of the existing defects, and by reason of such defects and negligence in failing to repair a person suffers special injury, then, in my opinion, the commissioners should be held liable individually for the damage. And I believe this view-is sustained by the current of authorities—at least there is very strong authority in its support.
In Adsit v. Brady, 4 Hill, 630, it was 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 adajcited to the nature of the case.” To the same effect is Wett v. Village of Brockport, 16 N.Y. 168, and Robinson v. Chamberlin, 37 id. 389.
In Hoover v. Barkhoof, 44 N.Y. 113, it was held that it was the duty of the commissioners of highways to repair defective highways and bridges, after notice of their condition, with reasonable and ordinary care and diligence, if they have sufficient means in their hands or authority to procure such funds, and neglect of their duty renders them liable in a civil action to any person specially injured.
In People ex rel. v. Board of Town Auditors, 75 N.Y. 316, it was said: “The town, in its proper capacity, has no control over highways and is under no legal obligation to keep highways and bridges in repair, and hence no recovery can be had against the town for injury received by the negligence of its officers in failing to keep them in safe and secure condition. Commissioners of highways receive and disburse all moneys raised for highway purposes, and lay out, discontinue and control the same. They are also liable, individually, in a civil action, for any wrong they may commit or any injury resulting from their neglect to repair a highway, if they have funds provided for such purpose, to any person who has sustained damage.”
In Huffman v. San Joaquin County, 21 Cal. 425, it was held that a county was not liable to an individual for damages sustained in consequence of the want of repair to a bridge, as the statute placed the management and control of bridges upon the supervisors and overseers, who had the duty of keeping the same in repair, and that if a remedy exists it should be sought against them personally.
In 1 Jones’ Law, (N. C.) 243, an overseer of a public road was held liable for special damage for injuries arising from the road being out of repair.
In House v. Board of Commissioners, 60 Ind. 580, the right to recover against the commissioners individually is recognized, although in that case the action was against the board of commissioners as a body politic and not corporate, but in the discussion it was said: “The board is a body politic and corporate, and as such may sue and be sued, and ample provision is made for the collection of judgments rendered against it. The obligation thus imposed upon the board to cause all bridges in the county to be kept in repair, with ample power to provide means to discharge the obligation, carries with it a corresponding right in every one having occasion, in the usual course of travel, to use the bridges, to have the obligation fulfilled and the bridges kept in repair. And it seems to us to follow, that where the board negligently suffers such bridge to be out of repair, whereby a person in the ordinary use of it is injured in person or property without his own fault, he must have an action against the board for the damages, otherwise there would be a wrong without a remedy. It will not do to say that the members of the board might be sued for the injury, in such case, in their individual capacity, and therefore that the corporation could not be sued. Without stopping to inquire, whether the members of the board would or would not be liable as individuals, it seems to us that a party thus injured should not be required to look for redress only to them as individuals,—they might be unable to respond in damages.”
In McCord v. High, 24 Iowa, 336, an action was brought against a road supervisor by an abutting land owner. A certain stream crossed the road and flowed through the land. The supervisor diverted the course of the stream so that the same quantity of water did not flow through the former bed, and in an action against him for damages it was said: “He is also required to direct the work, to make the repairs he has determined upon. This is simply a ministerial duty. * * * The defendant in the case at bar saw fit to change the course of the stream by dispensing with a bridge which had before been used, and erecting an embankment and culvert. Whatever rights the public had acquired to cross the stream by user and by acquiescence of the plaintiff, were confined to the use of the bridge, or such other manner of crossing as would interfere in no greater degree with the rights of the plaintiff to the water than did the bridge. The act of thus changing the manner of crossing the stream was ministerial in its nature, and it was the defendant’s absolute duty so to perform it that plaintiff should not be injured thereby. * * * The liability of the road supervisor for injuries sustained by another on account of the negligent and improper erection of a culvert over the stream of water was recognized in Conwell v. Emrie, 4 Ind. 209. * * * The powers of road supervisors are similar to those exercised by cities, through their officers and agents, in grading, paving and otherwise improving the streets,”—and in that case the supervisor was held individually liable. Judge Dillon, in a separate opinion in the same case, stated that he had much difficulty in reaching a conclusion, but inasmuch as an action could not be maintained against the town nor against the county, he held a recovery should be allowed against the supervisor in his individual capacity, and laid down the rule thus: “That where a public officer, other than a judicial one, does an act directly invasive of the private rights of others, and there is otherwise no remedy for the injury, such officer is personally liable, without proof of malice and an intent to injure.”
In Perry v. Barnett, 55 Ind. 522, the complaint was for obstructing a highway. The evidence was that the defendant built a bridge which was no obstruction, and that by reason of a defect therein the plaintiff was injured, and the court, in holding that a judgment could not be sustained against the defendant under the complaint, said that if the defendant failed to keep in repair or build properly so that the bridge would be reasonably safe, then, if liable at all, he was liable for a failure to discharge his official duty in that respect, but declined to pass upon the question of liability.
Other cases might be cited to sustain the view I am insisting upon, but in the brief time at my disposal a further examination of authorities may not be made.
Under the rule announced by the majority of the court disregard is had of the well known rule of law that a private remedy exists where damage is sustained by reason of an unlawful act.' The commissioners of highways are vested with authority to levy taxes and keep in repair the roads and bridges of their respective towns. Under the law they are in charge of such roads and bridges, and they only determine as to the expenditure of the funds arising from taxation, and by the opinion of the majority, however negligent they may be, provided it is not an absolutely willful and malicious negligence, no recovery can be had for the non-performance or negligent performance of their duties. It seems to me this is against law and against reason.
There are some cases that hold the commissioners are not liable individually, but in an analysis of those cases it must be remembered that in the New England States the towns are held responsible for damages resulting specially to one by reason of the non-repair of the public highway, and, where the town is thus made responsible, on no reason or principle could the individual be held liable by the party injured, however it might be with reference to the right of the town against him.
Nor am I willing to recognize the authorities cited in the opinion of the majority of this court. Bartlett v. Crozier, 17 Johns. 438, was a case where an action against an overseer was brought, and it was said: “It appears from a careful examination of the several provisions of the act, that the commissioners, and not the overseers of highways, are the responsible persons in respect to the erection or repair of bridges. The overseers have nothing to do with bridges, but in the single instance in which they receive fines and commutation money, or other money, under the order of the commissioners. In every other part of the act the duty of repairing bridges and expending money for that purpose is expressly vested in the commissioners. The overseers were intended to be chiefly confined to the highways. They are to warn the people to work with their implements and teams on the highways. The construction and repair of bridges is a distinct business. * * * My conclusion from this analysis of the act is, that with respect to bridges at least, if not to highways, the commissioners, and not the overseers, are the persons properly responsible to the public.” And it was held the statute was not well pleaded and a recovery would not lie against the overseer. In the subsequent cases in New York, as I have shown, the commissioners, as a body, are not held liable, but are liable individually. It seems to me the discussion in Bartlett v. Crozier is not an authority for holding the commissioners would not have been liable individually. The next two cases,—McKanzie v. Chevin and Young v. Commissioners,—do not, in principle, sustain the rule announced. The Young case was decided in 1820 and the McKanzie case in 1841. At the time of those decisions, under the legislation in South Carolina no provision was made by which the commissioners were authorized to levy a tax. They were without funds, depending solely on road labor, and where no means were provided by law to build or keep in repair the bridges, it is not strange that it should be held the commissioners would not be responsible in a private action for neglect of duty when there were no means to perform the duty. The next case of Lynn v. Adams, decided in 1850, has, as shown by the quotations above mentioned, if not reversed, been disregarded as authority in Indiana. Dunlap v. Knapp, decided in 1862, is in point and sustains the doctrine announced in the opinion, as does also McConnell v. Dewey, but I can not assent to the reasoning of those opinions.
The proposition in the opinion, that “the statute has provided means for redressing public wrong by a penalty, and that is sufficient to enforce the public duty,” is no answer to the question as to what is the individual right. Here we have a statute defining and declaring a duty of a public officer, and the rule is announced that if that officer neglects his duty, and by reason of it an individual suffers a special injury, there is no remedy for the individual, for the reason that he may not have an action against the county, nor.the town, nor the commissioners individually, for their wrongful neglect. It seems to me such a rule is not in accordance with the principles of common law, nor is it calculated to be beneficial to the progress and prosperity of the State of Illinois. The condition of the highways has much to do with the convenience and success of the people, and the principle announced in the opinion in this case seems to be a retrogression from the way of progress. To simply hold the commissioners of highways be to a fine for a failure to discharge their duty is not an answer to the proposition that an individual has suffered injury by their wrongful neglect and through their failure to discharge their duty has sustained damage, and is but slight satisfaction to the injured party without any compensation.
The proposition urged by the majority, that the defendants may be subjected to fine for refusing to accept the office of highway commissioners to which they were elected, (even if that act could be held constitutional if brought before this court,) should not relieve the commissioners from the liability for their negligent acts as officers, by which a person suffers a special injury. Neither is the reason assigned in the opinion of the court, that the compensation received by the commissioners for the discharge of their official duties is but little more than the wages of a laborer or servant, any reason why they should be relieved from liability for their negligent acts. The common observation of every individual is, that the citizens of the State of Illinois do not regard with very serious objection the imposition of official duties upon them, and as a rule are willing to accept office,—even that of commissioner of highways,— and strive to obtain it, as is shown by the records of this court in Apple v. Barcroft, 158 Ill. 649, where a contested election was brought to this court to determine the right to office of the commissioners of highways.
I believe where the commissioners have funds in their hands which may be used for the repair of highways, or means of procuring funds officially, and they negligently fail to use them for that purpose, they should be held individually liable for any injury resulting to one specially from such negligence, and hence I dissent from the opinion of the majority.