duty of keeping in repair the public highways in their respective limits is imposed on both for the benefit of the public without any consideration or emolument received by either. Before the incorporation of a town or city, the road district or county is charged with the duty of keeping its highways in repair; when the territory becomes incorporated as a city or town, the duty is simply transferred from one governmental agency to another. The mere incorporation does not deprive a certain district of its character as a governmental agent. The object, purpose, reason and character of the duty is the same in both cases. The application of the doctrine of liability in respect to keeping highways in repair to municipal corporations proper and the exemption. in the case of quasi corporations should, it seems to the author, be better based upon certain special considerations of public policy or upon the doctrine of stare decisis rather than upon a strictly legal principle sufficient to justify the distinction. How

ham, 49 Ark. 139, 4 S. W. 450. The rule of nonliability in respect to quasi corporations is stated, and the suggestion made that it is diffi cult to understand why the same rule should not apply and be enforced as to incorporated towns and cities. The court further says: "For, like counties, they are a part of the machinery of the state, and are its auxiliaries in the important business of municipal rule and internal administration, and their functions are almost wholly of a public nature. Like counties, their functions, rights and privileges, are under the control of the legislature, and may be changed, modified or repealed, as a general rule, as the exigencies of the public service or the public welfare demand. Like counties, they can sustain no right or privilege, or their existence, upon anything like a contract between them and the state, because there is not and cannot be any reciprocity of stipulation, and

their objects and duties are wholly incompatible with everything of the nature of a compact. The duty of keeping in repair the public highways in their respective limits is imposed on both for the benefit of the public, without any consideration or emolument received by either. Before the incorporation of the town or city the county was charged with the duty of keeping its highways in repair. When the town or city becomes incorporated that duty is transferred to the town or city, from one governmental agency to another. The object, purpose, reason and character of the duty are the same in both cases. This being true, there can be no reason why the town or city shall be any more liable to a private action for neglect to perform this duty than the county previously was, unless the statute transferring the duty clearly manifests an intention in the legislature to impose this liability."

ever, in some instances, the suggestion has been made as different from all others, that since a municipal corporation proper derives or has the right to derive a revenue from the use of its streets in the granting of privileges or licenses to quasi public corporations or individuals engaged in the business of supplying some public utility, so called, that the duty should be imposed. upon it of keeping in repair such highways. While it is true. that the general principle of law exists founded in reason, as it has been said: "That where one suffers an injury by the neglect of any duty or obligation owing him which rests upon another, the person injured has his action;" yet, the application of this principle has, by universal consent, been withheld from the sovereign and its properly delegated agencies.148 The tendency to enlarge the liability of municipal corporations in the discharge of governmental duties seem to be founded not upon any legal principle or ground of public policy, but rather the reverse. A public, governmental, or political duty is one which all subordinate corporations owe to the state or the sovereignty which creates them. A private or corporate duty, the basis of liability, is a proprietary one due to the individual citizens who may compose the public corporation and who sustain towards it a position analogous to the stockholders or members of a private corporation.

987. The duty to construct or improve.

The duty to construct or improve public highways is regarded as coming within the class of discretionary or legislative duties and for a failure to exercise this duty or in some particular respect there can arise no liability. The rule is applied to all classes of public corporations.149 The reason is apparent. Local governmental agents are given by the legislature ample and, in many cases, exclusive powers to deal with all questions pertaining to the construction of public improvements because of their greater familiarity and knowledge of local conditions and necessities and further because these are almost universally constructed from local taxation. The determination of the necessity or the feasi

148 See §§ 953 et seq., ante.
149 City of Henderson v. Sande-

fur, 74 Ky. (11 Bush) 550.
§§ 341 et seq., and 422 et seq.

See

bility of exercising these powers in respect to the subject under consideration is clearly a legislative or discretionary one; one not only vested in but consequently resting upon the public authorities and, therefore, no liability can arise for its exercise or for a failure to take action.

§ 988. Character of duty in respect to defective highways.

The rules to be given in this and following sections apply to all corporations upon which the duty rests except as they may be modified by local statutes. As it is impossible in this work to enter into the necessary detail in this respect, the reader is referred to local decisions for a determination of questions arising under local laws. The duty required is to keep public highways in a reasonably safe and fit condition for ordinary travel by those to whom the right is given and who are using them in a proper manner or, as stated in another way, the duty is to exercise reasonable care in maintaining public highways in a safe condition for ordinary travel.151 Under no circumstances or conditions is the corporation upon which the duty is imposed to be regarded as an insurer. This principle cannot be stated too emphatically.152

150

150 City of Denver v. Cochran, 17 Colo. App. 72, 67 Pac. 23.

58

151 City of Hannibal v. Campbell, 86 Fed. 297, 30 C. C. A. 63; Biesiegel v. Town of Seymour, Conn. 43, 19 Atl. 372; Pierce v. City of Wilmington, 2 Marv. (Del.) 306, 43 Atl. 162; City of Columbus v. Ogletree, 102 Ga. 293; Village of Mansfield v. Moore, 124 Ill. 133, 16 N. E. 246; City of Salem v. Webster, 192 Ill. 369, 61 N. E. 323, affirming 95 Ill. App. 120; City of Elgin v. Thompson, 98 Ill. App. 358; Town of Worthington v. Morgan, 17 Ind. App. 603, 47 N. E. 235; Graham v. Town of Oxford, 105 Iowa, 705; City of Covington v. Bryant, 70 Ky. (7 Bush) 248. The rule applies to streets in a city upon which repairs or improvements are being made. Merrill v. Inhabitants of Hampden, 26 Me. 234; Abb. Corp. Vol. III — 19

Church v. Inhabitants of Cherryfield, 33 Me. 460; Blood v. Inhabitants of Hubbardston, 121 Mass. 233. The fact that the defect may have been increased through the action of the elements will not affect the liability of a town. Chilton v. City of St. Joseph, 143 Mo. 192; Twist v. City of Rochester, 165 N. Y. 619, 59 N. E. 1131; Bishop v. Schulkill Tp. (Pa.) 8 Atl. 449; Moore v. City of Richmond, 85 Va. 538, 8 S. E. 387; Lorence v. City of Ellensburgh, 13 Wash. 341, 43 Pac. 20; Sutton v. City of Snohomish, 11 Wash. 24, 39 Pac. 273; Taylor v. City of Ballard, 24 Wash. 191, 64 Pac. 143; Waggener v. Town of Point Pleasant, 42 W. Va. 798, 26 S. E. 352; Becker v. City of La Crosse, 99 Wis. 414, 40 L. R. A. 829.

152 City of Boulder v. Niles, 9 Colo. 415, 12 Pac. 632; City of Den

Nor is it its duty to protect the public against latent defects.153 It is bound to exercise reasonable care only in the performance of its obligations and this reasonable care is a varying one. Publie highways are liable to be used by all classes and conditions of men, the young, the old, the vigorous and the weak, at all seasons of the year and at all times of the day and night, for different kinds of vehicles and different classes of travel. In short, they are liable to be used and are used under innumerable and varying circumstances. The duty to exercise reasonable care, a negligent performance of which may be the basis of a liability, is not, therefore, fixed, absolute and unvarying but one which differs as required by changing conditions.154

Duty; when absolute. In a special sense the duty, when one exists, is absolute, namely, the public corporation is liable for a failure to properly perform the duty whether the defect was occasioned by its own acts or lack of attention or through the defects of third parties.155 The fact that a defect may have been caused by the act of private persons will afford no defense if it is of such a character as to be regarded as a violation of the duty imposed in the first instance upon the public authorities.156

§ 989. Basis of liability.

The basis of liability as established by adjudicated cases is dependent upon the character or nature of the duty unless arbi

ver v. Moewes, 15 Colo. App. 28, 60 Pac. 986; City of Rock Island v. Drost, 71 Ill. App. 613; City of Chicago v. McGiven, 78 Ill. 347; Magaha v. City of Hagerstown, 95 Md. 62, 51 Atl. 832; Craig v. City of Sedalia, 63 Mo. 417; Turner v. City of Newburg, 109 N. Y. 301, 16 N. E. 344.

153 Wakeham v. St. Clair Tp., 91 Mich. 15, 51 N. W. 696. See § 1041, post.

154 City of Milledgeville v. Cooley, 55 Ga. 17; City of Rome v. Dodge, 58 Ga. 238. The duty extends to night travel. Yordy v. Marshall County, 80 Iowa, 405, 45 N. W. 1042.

Whether the use of a bridge by a threshing outfit is an unusual and extraordinary one so as to exempt a county from liability is a question for the jury. Foster v. Lyon County Com'rs, 63 Kan. 43, 64 Pac. 1037; Brendlinger v. New Hanover Tp., 148 Pa. 93, 23 Atl. 1105. Liability affected by nature of soil. Seward v. Town of Milford, 21 Wis. 485. Highways are made to be traveled by night as well as day.

155 City of Mt. Carmel v. Blackburn, 53 Ill. App. 658. See, also, § 994, post.

156 Eginoire v. Union County, 112 Iowa, 558, 84 N. W. 758; City of

trarily imposed by statute. The duty is supposed to be one which appertains to the corporation in its private or corporate capacity and which it enjoys for the local advantage and emolument of its citizens. It is not one imposed as a governmental or public duty except as modified by the principles noted.

§ 990. Character of highways to which duty applies.

The duty wherever existing applies only to a public highway or street.157 The importance of the discussion in previous sections. in respect to the establishment and discontinuance of public highways will be therefore appreciated.158 No liability will attach if the injury has occurred by reason of a defect in a highway not legally established or public in its character.159 The rule eliminates from a liability all private ways.160