Hutchinson v. City of Olympia

Opinion by Greene, Chief Justice.

This is a suit in error to reverse a judgment which was rendered upon sustaining a demurrer to the complaint.

The single question submitted to this Court for its decision is, as to the liability of the city of Olympia, under its charter and the statutes of this Territory, to an action by a private person for an injury caused by the neglect of the city to repair a defect in one of its sidewalks.

*319 Section G2, and Subdivision 25 of Section 3, appear to be the only parts of the defendant’s charter material to be considered. These are as follows :

" Sec. 62. The wards, streets, and alleys within said city limits shall be under the exclusive control of the common council, who shall make all needful rules in regard to the improvement, repair, grading, cleaning, etc., etc., thereof, and for the purposes of this act, said city shall not be included in any road district; but the road tax due by law within the city shall be collected as provided by ordinance.”

“ Twenty-fifth.” “ To construct and repair sidewalks, and to remove obstructions from streets, alleys, sidewalks and sewers, and to levy and collect a special tax or assessment upon all blocks, lots, or parcels of land fronting on such streets, alleys, or sidewalks within the city limits, sufficient to pay the expenses-of such improvement, or repair, or removal of obstruction ; and for such purpose may establish districts consisting of the blocks,, lots, or parcels of land fronting in the whole or such portions o£ the street, alley, or sidewalk to be made or repaired, as may be deemed advisable. -A lot or parcel of land shall he deemed tn front on an alley when such alley runs through it, or it shall touch upon said alley. But in no case shall such sidewalk be built, and such assessment be made or tax levied to pay therefor, unless a majority of the property owners in such district shall, by petition to the Common Council, ask for the same, or two-thirds of the members of the Common Council assent thereto, by vote at a regular meeting.” t

That these sections cast on the city the duty of keeping its sidewalks in repair, wc entertain no doubt. It is to be observed that Section 62 gives the city exclusive control ” of the streets, and expressly devolves upon it the function of making “ all needful rules in regard to the improvement and repair thereof.” This grant of “ exclusive control ” implies that control is deemed by the Legislature desirable and necessary for the accommodation of the public, and imposes the duty of exercising that control as far as public convenience and safety may require. The imposition of the duty to make “ all needful rules” for the improvement and repair of streets, implies that rules will be needed —that is to say, because public use and welfare will demand *320 such improvements and repairs. We think that the provisions of this section, taken by themselves, impose a manifest duty upon the municipality to keep its streets in repair; and if its streets, then also its sidewalks, for they are a part of its streets.

Subdivision 25 has been assumed by defendant to qualify ■Sec. 62, and to indicate that the Legislature intended not to •charge the city with any such duty. Defendant bases this assumption upon the supposition, that, according to this subdivision, there can be no repair of a sidewalk, except upon one or the other of two contingences, namely : a petition by a majority of property owners, or a two-thirds vote of the Council. But the language used, as we read it, does not say or import any such thing. It only says, that without such petition or vote there shall in no case a “ sidewalk be built,” and an “ assessment be made or tax levied to pay therefor.” “Therefor” means for the sidewalk being built. “ Built ” means constructed. Between building and repairing there is a plain distinction.

To build a sidewalk in a country town, or in an unfrequented quarter of a city, might be a very inexpedient, because a needless, public work. But if a sidewalk, once built, be not' kept in Tepair, it becomes directly a positive offense to the public, a anan-trap and a nuisance.

As regards the liability of a city like Olympia to a private action, in a case like this, except by authority of express statute giving the right to sue, there is considerable conflict among the authorities, and many shades of distinction are made in endeavors to reconcile them. The various views are presented, and the cases jjro and con discussed in Dillon on Municipal Corporations, and in the cases of Burns v. The District of Columbia, 1 Otto, 540 ; Hill v. Boston, 122 Mass. 344 , and 21 Mich.

In Burns v. The District cf Columbia, the Supreme Court of the United States declare unequivocally in favor of the liability. It does not seem to us to have been necessary for the decision of that case to have asserted so broad a doctrine; but that the 'Court intended to assert it, and to plant their decision upon it, there can, we think, be no mistake. We regard that decision as binding upon us, and conclusive of this case as to the liability of the city.

Such being our opinion, we do not think it necessary or wise *321 to consider the question of whether Sections 661 and 662 of the Code do not make all municipal or quasi corporations liable to private action for personal injuries caused by their neglect of «duty owed to the public.

The decision of the Court below will be reversed, and the «ause remanded for further proceedings.

We concur : S. C. "Wingard, Associate. Justice.

George Turner, Associate Justice.