Clark v. Coos County
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Opinion of the Court
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Mr. Justice Burnett
delivered the opinion of the court.
The case at hand is identical in principle, and must be governed by the decision in Rapp v. Multnomah County, 77 Or. 607 ( 152 Pac. 243 ), which ruled that, where the plaintiff sues under the Employers’ Liability Act for personal injuries sustained while an employee of the county, his action is one of tort resting on negligence and will not be heard, as the county can be sued only under Section 358, L. O. L., which permits suits against it on its contracts only; and that, where the legislature failed to include counties in the opera *404 tion of the Employers’ Liability Act, the courts will not apply the statute to actions against them.
At the argument the plaintiff counted strongly on the language of Section 10 of Article I of the Constitution of the state that:
“Every man shall have remedy by due course of law for injury done him in his person, property, or reputation.”
Against whom the man shall have a remedy is not stated. Neither is any process detailed whereby it may be enforced. Until the legislative department of the government shall provide that the state or its counties may be sued, in an action of this sort, this constitutional provision as to state governmental agencies must be treated as not self-executing. Manifestly this has been the legislative construction of the clause, else we would not have such enactments as Section 358, L. O. L., permitting the maintenance of an action against a county upon a contract “and not otherwise,” or Section 6375, L. O. L., giving a right of action against a county in favor of one injured by a defect in the highway while lawfully traveling thereon, etc. As against a county the courts cannot proceed under the quoted excerpt from the organic act any further than the legislative power has pointed the way. In short, a county cannot be called to account at the suit of a private party for any default in its governmental functions unless there is a statute allowing it. No enactment has been pointed out sanctioning such procedure.
The judgment of the Circuit Court must therefore be reversed. Reversed.
Mr. Chief Justice Moore, Me. Justice McBride and Me. Justice Benson concur.
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