Gratney ex rel. Gratney v. Board of County Commissioners

West, J.

(dissenting): It is the province of the courts to construe but not to amend statutes. The act of 1887 is to my mind fairly susceptible of only one construction — the one given in the opinion formerly filed in this case.

As early as Eikenberry v. Township of Bazaar, 22 Kan. 557, it was held that in the absence of express statutory enactment, placing liability on townships for injuries sustained on account of defects in highways, such organizations are not liable for damages. This was reaffirmed in Comm’rs of Marion Co. v. Riggs, 24 Kan. 255, and in Township of Quincy v. Sheehan, 48 Kan. 620, 29 Pac. 1084. That *171was an action brought under the act of 1887, concerning which it was said:

“Under the statute quoted, the township may be required to respond in damages where the injury results from a defective bridge, culvert, or highway. . . .” (p. 623.)

In The State, ex rel., v. Shawnee County, 57 Kan. 267, 45 Pac. 616, the objection urged under the statute was that it withdrew a portion of Topeka from its corporate control. The court said:

“The fact that a county may have built a bridge within the limits of a city does not necessarily imply that the burden of maintaining it is upon the county, nor that the city will be excluded from its control. . . .” (p. 270.)

Comm’rs of Shawnee Co. v. City of Topeka, 39 Kan. 197, 18 Pac. 161, was cited to the effect that—

“The mere fact that it may have built the bridge was held to be no reason why the county should be compelled to keep it in repair.” (p. 271.)

In Cunningham, v. Clay Township, 69 Kan. 373, 76 Pac. 907, it was decided that under the act of 1887 it is not sufficient defense to show that the township officers had exercised ordinary care to prevent the defect.

“Before the enactment of that section in 1887 (Laws 1887, ch. 237), such an action could not have been maintained. . . . The limit of the township’s liability therefore must be found in the statute itself, . . .” (p. 376.)
“When injury is sustained by reason of a defective highway, if the township trustee has had five days’ notice of the defect the township is liable, however great care the officers may have exercised; but if the trustee has had no such notice the township is not liable, however negligent the officers may have been. The statute makes its own definition of actionable negligence.” (p. 377.)

This disposes of the contention that liability is based on mere negligence. Fisher v. Township, 87 Kan. 674, 125 Pac. 94, exhaustively reviewed the former decisions of this court touching the liability of townships, and declared the law to be that a township engaged in improving a highway is not liable for damages occasioned by the negligence of its officers. In Drainage District v. Highway Commissioners, 102 Kan. 535, 171 Pac. 613, it was held that the statute defining the powers of a drainage district does not vest the board with authority to regulate the construction of highways or of culverts forming parts of the highways within the district.

“But such power over township highways is vested in township officers, . . .” (Syl.)
“Culverts constitute a part of the highway and are necessary to its construction, and the township officers are not only given control of the construction, *172but the township itself is made liable for injuries which result from defective construction.” (p. 536.)

In Wagner v. Edwards County, 103 Kan. 719, 179 Pac. 140, 665, the liability of counties for injuries sustained by reason of defective bridges, culverts and highways was held to be statutory and not coextensive with the common-law liability for negligence. The action involved an alleged defect in a culvert placed in the highway. The case turned on the questipn of notice, and no reference was made to any distinction between liability of the county or township. Irvin v. Finney County, 106 Kan. 171, 186 Pac. 975, held that a county is not liable for defects in a highway unless it has been duly designated as a county highway, nor for defects in bridges unless wholly or partially constructed by it.

“The extent of the liability of counties for such damage and the conditions on which a recovery may be had against them are found in section 722 of the General Statutes of 1915. . . . The section last referred to provides that when a bridge has been wholly or partially constructed by the county, a recovery may be had against the county for damages resulting from defects in it, if due notice of the defects has been brought to the chairman of the board five days prior to the time the damage was sustained.” (p. 174.)

Dubourdieu v. Delaware Township, 106 Kan. 650, 189 Pac. 386, involved a suit against Delaware township in Wyandotte county for injuries caused by a defective highway a short distance out of Bonner Springs, crossing Wolf creek over which a steel bridge was maintained by Wyandotte county. When the plaintiff reached a point south and west of the bridge a portion of the side of the road caved, causing the accident. The act of 1887 was attacked as unconstitutional, but sustained. It was insisted that under the statute a defective bridge need not be upon a highway at all, but it was said that a bridge is a part of the highway.

“If an accident were caused by a defect in a bridge erected and maintained by a county on a township road, the county under certain conditions would be liable; if the injury were caused by a defect in the part of the road maintained by the township, the township would under similar circumstances be liable. Under the present road laws all public roads are either state roads, county roads, mail routes, or township roads, (Gen. Stat. 1915, §8772), and certain classes of bridges on a township road are county bridges, because it is made the duty of the county to build them where the cost exceeds a certain amount. ... As we have seen, it was the legislative purpose to define the liability of townships and counties in certain instances for defects in highways, and each provision of the act is fairly adapted to accomplish the purpose and has a logical connection with the general subject.” (p. 654.)

*173It is quite clear that among all the multitude of road statutes passed in 1874 and since, this is the only one which in any way has ever sought to impose any liability upon a township or county on account of defects in a highway, and this is the first case in the history of the state that has ever presented the clear and square question now raised as to which of the two municipalities is liable. Of course, whatever was said and held by the court in the last two cases cited had reference to statutory enactments since the injury now under consideration occurred and hence was not directly in point.

Counsel cites City of Eudora v. Miller, 30 Kan. 494, 2 Pac. 685; Comm’rs of Shawnee Co. v. City of Topeka, 39 Kan. 197, 18 Pac. 161; and City of Rosedale v. Golding, 55 Kan. 167, 40 Pac. 284, to show that a bridge constructed by a county, and afterwards taken into a city must be maintained by the latter. In the Eudora case it was also held that though the bridge was built by the county and ■came within the limits of a city of less than six hundred inhabitants, forming a part of two-road districts, the city was still obliged to keep it in repair. In the Topeka case the fact that a city and a county joined in the purchase of a bridge and exercised joint control over it for some time, was held not to impose any liability on the county for the future. The Rosedale case involved a bridge which had been built and maintained by the county within the corporate limits of the city forming ‘a part of one of its streets, and under the general duty of cities to keep their streets reasonably safe for travel the city was held liable.

A supposed poser is put by counsel — that had the county piled rock, gravel and sand along this road, the township would have been helpless to remove such dangerous impediments to travel. Wo can find, however, no provision of any statute or any fair implication therefrom in anywise authorizing the county thus to endanger travel, or preventing the township from speedily removing such impediments. Indeed, a number of the statutes quoted from carry express commands to the highway commissioners to keep the roads in their townships free from obstructions.

In his brief he says that there is an entry in the journal of the county board recommending that the Leavenworth road be classed as a county road, under date of December 1, 1913. But this decides and determines nothing respecting the liability of the two municipalities under the damage act of 1887.

*174The strongest argument and the one most vigorously pressed by counsel for the township is that the legislature by the act of 1899 and subsequent supplemental statutes has withdrawn this road from the ordinary category of roads and taken it out from under the obligations and liabilities incident to such ordinary highways within Wyandotte county. Let us see. When chapter 237 was passed, in 1887, the general road law was found in the compiled statutes of 1885, and of necessity the act must be judged, and construed as of that date and in view of the legislation then existing.

“The legislature is presumed to have had former statutes before it, to have been acquainted with their judicial construction, and to have passed new statutes on the same subject with reference thereto.” (25 R. C. L. 1063.)

An examination of that legislation shows that the road overseer was required to open or cause to be opened—

“all county and state roads and highways which have been or may hereafter be laid out or established through any part of the district assigned to such overseer . . . and the overseer shall keep the same in repair, and remove or cause to be removed all obstructions that may from time to time be found thereon. . . .” (Comp. Laws, 1885, ch. 89, § 12.)

Section 27:

“If at any time any highway shall be obstructed or become impassable, or any bridge shall be impaired so as to be unsafe it shall be the duty of the overseer of the district in which such obstruction, impassable road or impaired bridge may be situated, to cause such obstruction to be removed, or such road or bridge to be repaired forthwith, . . .”

Section 42 provided for declaring a township one road district on proper petition.

“And for the purpose of repairing the roads leading into any city, town or village,-any two adjoining townships, or any adjoining city and township, may . . . consolidate . . .”

Section 27 of chapter 16, concerning bridges, required the road overseer to “inspect all the bridges in his district from time to time, and in case any repairs become necessary to any bridge, or approach to a bridge,” to repair or report to the county board. That chapter provided that the county board should determine what bridges should be built and repaired at the expense of the county and what by the road district. In case the estimated cost was over $200 they were to appoint the township trustee commissioner to contract for its building. Section 9 provided that when it should become “necessary to repair any public bridge (for which the county has appro*175priated money for the construction thereof),” the county commissioners should require the township trustee of the township in which such bridge was located to examine and estimate the cost of repairing, the county board to appropriate money therefor and “proceed forthwith to cause said bridge to be repaired in the way they may order and direct.”

With this existing legislation in view it is proper to examine chapter 237. It will be observed that the damage is to be recovered from the “county or township wherein such defective bridge, culvert or highway is located, as hereinafter provided.” Three things — a defective bridge, a defective culvert, or a defective highway — are the only possible causes of injury included. Damages caused by either may be recovered in only one way — that is, “as hereinafter provided.” Then come the prescribed way and conditions; when damage was caused by a defective bridge constructed wholly or partially by the county, and the chairman of the county had five days’ notice. This is one case. And, “in other cases,” which must mean all other cases, “such recovery may be had from the township. . . .” So, according to the unmistakable terms of the act the county is liable in one case only — when the damage was caused (not by a defective culvert or highway, or even by a defective bridge) but by a bridge wholly or partially constructed by the county. Why the act was drawn this way instead of some other, we are not advised nor does it concern us. It is sufficient to know that thus it was written. Nothing whatever in the road law of this state when this statute was passed, and nothing in the act itself, shows the slightest intention to make liability dependent on maintenance, and yet this has beqn left untouched by the legislature for thirty-four years, and remains the sole legislative instance of making either a township or a county liable for defective bridges, culverts or highways. In view of this history and.the plain provisions of the act in question all subsequent acts providing for building and maintaining roads by Wyandotte county can have no effect to repeal or modify this act, which relates not to construction and maintenance of roads or bridges, but only to damages for defects in them.

There will soon be a session of the legislature, and if the interpretation contended for by counsel is desired, a proper amendment cán easily be made, or a new act passed.

Justices Burch and Mason join in this dissent. (Filed May 6, 1922.) (7. W. Trickett, of Kansas City, for appellant Quindaro township. J. II. Brady, and T. F. Railsback, both of Kansas City, for the board of county commissioners; David F. Carson, and James T. Cochran, both of .Kansas City, for S. D. Gratney.