East Kingston v. Towle, 48 N. H. 61, 97 Am. | 159; Power v. Harlow, 57 Mich. 111; Hub- The expressions "due process of law" and "law of the land" were intended to secure an individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice. Bank of Columbia v. Okely, 4 Wheat. 244, 4 L. ed. 561; Hurtado v. California, 110 U. S. 516, 28 L. ed. 232; Denver & R. G. R. Co. v. Outcalt, 2 Colo. App. 395; Wilkinson v. Leland, 2 Pet. 641, 7 L. ed. 547; Ordronaux, Constitutional Legislation, 254, 255. The statute is clearly unconstitutional, because it imposes upon the adjacent landowner an absolute liability, irrespective of negligence. Denver & R. G. R. Co. v. Outcalt, 2 Colo. App. 395; Jensen v. Union P. R. Co. 6 Utah, 253, 4 L. R. A. 724; Cateril v. Union P. R. Co. 2 Idaho, 540; Bielenberg v. Montana Union R. Co. 8 Mont. 271, 2 L. R. A. 813; Oregon R. & Nav. Co. v. Smalley, 1 Wash. 206; East Kingston v. Towle, 48 N. H. 57, 97 Am. Dec. 575, 2 Am. Rep. 174; Ohio & M. R. Co. v. Lackey, 78 Ill. 55, 20 Am. Rep. 259; Durkin v. Kingston Coal Co. 171 Pa. 193, 29 L. R. A. 808; San Antonia & A. P. R. Co. v. Wilson (Tex. App.) 19 S. W. 910; Anderton v. Milwaukee, 82 Wis. 279, 15 L. R. A. 830; Cooley, Const. Law, 484, 485; Millett v. People, 117 111. 294, 57 Am. Rep. 869; Sedgw. Stat. & Const. L. 138-145. The adjacent landowner cannot be held liable for defects in the sidewalk over which he has no control. Rochester v. Campbell, 123 N. Y. 405, 10 L. R. A. 393; Toutloff v. Green Bay, 91 Wis. 490; Law v. Kingsley, 82 Hun, 76; Chicago v. O'Brien, 111 Ill. 532, 53 Am. Rep. 640; Fulton v. Tucker, 3 Hun, 529; Dill. Mun. Corp. § 1012; Kirby v. Boylston Market Asso. 14 Gray, 252, 74 Am. Dec. 682; Hartford v. Talcott, 48 Conn. 525, 40 Am. Rep. 189; Taylor v. Lake Shore & M. S. R. Co. 45 Mich. 74, 40 Am. Rep. 457; Jansen v. Atchison, 16 Kan. 358; Keokuk v. Independent District, 53 Iowa, 352, 36 Am. Rep. 226; Flynn v. Canton Co. 40 Md. 312, 17 Am. Rep. 603. There is no liability on the landowner at common law. Cooper v. Waterloo, 88 Wis. 433. The legislature can no more absolutely relieve a municipal corporation from liability for its negligence than it can an individual. Durkee v. Janesville, 28 Wis. 470, 9 Am. Rep. 500; Del. Const. art. 1, § 9; Cook v. Gray, 2 Houst. (Del.) 455, 81 Am. Dec. 185; Cooley, Const. Lim. 352, 353, 445. A right of action when it comes into existence under common-law principles, and is not given by the statute as a mere penalty, or without equitable basis, is as much property as any tangible possession, and is as much within the rules of constitutional protection. Griffin v. Wilcox, 21 Ind. 370; Dunlap v. Toledo, A. A. & G. T. R. Co. 50 Mich. 474: Johnson v. Jones, 44 Ill. 142, 92 Am. Dec. There is no rule or principle known to our system under which private property can be taken from one person and transferred to another for the benefit of such other person, whether by general law or by special enactment. Cooley, Const. Lim. 437; Foule v. Mann, 53 Iowa, 42; Ehlers v. Stoeckle, 37 Mich. 261; Holden v. James, 11 Mass. 396, 6 Am. Dec. 174; Picquet, Appellant, 5 Pick. 65. Acts exempting municipalities are unconstitutional and void. Noonan v. Stillwater, 33 Minn. 198, 53 Am. Rep. 23; Hincks v. Milwaukee, 46 Wis. 559, 32 Am. Rep. 725; Durkee v. Janesville, 28 Wis. 470, 9 Am. Rep. 500; Jones, Neg. §§ 87-89; Hardy v. Brooklyn, 90 N. Y. 435, 43 Am. Rep. 182; Fitzpatrick v. Slocum, 89 N. Y. 365; San Mateo County v. Southern P. R. Co. 13 Fed. Rep. 145; Stuart v. Palmer, 74 N. Y. 183, 30 Am. Rep. 289; Ulman v. Baltimore, 72 Md. 587, 11 L. R. A. 224. As the owner of land, a municipal corporation is subject to the same liabilities for its negligent care thereof as an individual. 2 Dill. Mun. Corp. §§ 985, 986; 1 Shearm. & Redf. Neg. § 285; 2 Thomp. Neg. 658, 666, 740; Bailey v. New York, 3 Hill, 531, 38 Am. Dec. 669, on appeal, 2 Denio, 433; Jones, Neg. §§ 38, 39. Mr. William S. Hilles, also for defendants in error: Apart from some statute plainly imposing such obligations, there is no obligation on the part of an abutting owner to repair the sidewalk, although he may be liable to be taxed for repairs made to the sidewalk by the municipality or by its direction. Eustace v. Jahns, 38 Cal. 3; Rockford v. Hildebrand, 61 Ill. 155; Rochester v. Campbell, 123 N. Y. 405, 10 L. R. A. 393; Keokuk V. Independent District, 53 Iowa, 352, 36 Am. Rep. 226; Beach, Pub. Corp. § 1490; Jones, Neg. of Mun. Corp. § 89; Dill. Mun. Corp. 1012; Law v. Kingsley, 82 Hun, 76; Fulton v. Tucker, 3 Hun, 529; Chicago v. O'Brien, 111 Ill. 532, 53 Am. Rep. 640: Kirby v. Boylston Market Asso. 14 Gray, 249, 74 Am. Dec. 682; Hartford v. Talcott, 48 Conn. 525, 40 Am. Rep. 189; Taylor v. Lake Shore & M. S. R. Co. 45 Mich. 74, 40 Am. Rep. 457; Jansen v. Atchison, 16 Kan. 358; Flynn v. Canton Co. 40 Md. 312, 17 Am. Rep. 603. Under the charter of Wilmington, there is no provision whatever to charge an abutting owner for such repairs as were, by the proof, necessary and needed to this gutter. Any statute inposing a special burden of this character must be strictly construed, and not made to comprehend cases not falling within its very terms. Cooley, Taxn. 276-609; Beach, Pub. Corp. §§ 1125-1137, 1166. Where by statute, or ordinance, an abutting owner has been obliged to remove snow and ice from his pavement under penalty for his failure to do so, and where such abutting owner has been sought to be made liable to one injured, by reason of the failure -of such owner to comply with the statute or ordinance, it has been invariably held in such cases that the owner was not liable to such persons, and was not liable over to the city against whom damages had been originally recovered. Flynn v. Canton Co. 40 Md. 312, 17 Am. Rep. 603; Moore v. Gadsden, 93 N. Y. 12; Hartford v. Talcott, 48 Conn. 525, 40 Am. Rep. 189; Rochester v. Campbell, 123 N. Y. 405, 10 L. R. A. 393; Kirby v. Boylston Market Asso. 14 Gray, 249, 74 Am. Dec. 682. The courts of this state have power to declare unconstitutional a law not in direct conflict with the language of the Constitution of the state or of the United States. Cooley, Const. Lim. 352, 353, 445. There must be a remedy in a case where one is injured without fault of his own, by a defect in one of the streets or approaches to the street, either against the city or some one of the officers. Noonan v. Stillwater, 33 Minn. 198, 53 Am. Rep. 23; Hincks v. Milwaukee, 47 Wis. 559, 32 Am. Rep. 725; Durkee v. Janesville, 28 Wis. 464, 9 Am. Rep. 500; Jones, Neg. § 87; Hardy v. Brooklyn, 90 N. Y. 435, 43 Am. Rep. 182; Fitzpatrick v. Slocum, 89 N. Y. 365; San Mateo County v. Southern P. R. Co. 13 Fed. Rep. 145; Stuart v. Palmer, 74 N. Y. 183, 30 Am. Rep. 289; Ulman v. Baltimore, 72 Md. 587, 11 L. R. A. 224; Eustace v. Jahns, 38 Cal. 3; Hartford v. Talcott, 48 Conn. 525, 40 Am. Rep. 189; Elkhart v. Wickwire, 87 Ind. 77; Keokuk v. Independ Rice v. Foster, 4 Harr. (Del.) 479; Regents of the University v. Williams, 9 Gill & J. 365, 31 Am. Dec. 72; Welch v. Wads-ent District, 53 Iowa, 352, 36 Am. Rep. 226; worth, 30 Conn. 155, 79 Am. Dec. 236; Calder v. Bull, 3 Dall. 386, 1 L. ed. 648; Wilkinson v. Leland, 2 Pet. 657, 7 L. ed. 553; People v. Toynbee, 20 Barb. 218; Taylor v. Porter, 4 Hill, 145, 40 Am. Dec. 274; Goshen v. Stonington, 4 Conn. 209, 10 Am. Dec. 121; Varick v. Smith, 5 Paige, 137, 28 Am. Dec. 417; Griffith v. Crawford County Comrs. 20 Ohio, 609; Ross's Case, 2 Pick. 169; Bonham's Case, 8 Coke, 118. The legislature can make no man respon-ible for negligence except "according to the usual practice" of the courts. Oregon R. & Nav. Co. v. Smalley, 1 Wash. 206; Bielenberg v. Montana Union R. Co. 8 Mont. 271, 2 L. R. A. 813; Jensen v. Union P. R. Co. 6 Utah, 253, 4 L. R. A. 724; Cateril v. Union P. R. Co. 2 Idaho, 540; Dacres v. Oregon R. & Nov. Co. 1 Wash. 525; Zeigler v. South & North Ala. R. Co. 58 Ala. 594; Memphis &C. R. Co. v. Lyon, 62 Ala. 71; Thompson v. Northern P. R. Co. 8 Mont. 279; Denver & R. G. R. Co. v. Outcait, 2 Colo. App. 395; Birmingham Mineral R. Co. v. Parsons, 100 Ala. 662, 27 L. R. A. 263; Denver & R. G. R. Co. v. Wheatley, 7 Colo. App. 284; Ohio & M. R. Co. v. Lackey, 78 Ill. 55, 20 Am. Rep. 259. The municipality having title to the real estate comprised within the limits of Ninth street is equally responsible with an individual for injuries occasioned by its failure to use proper care in the management of its property. Dill. Mun. Corp. §§ 66, 985, 986; Cooley, Torts, 619, 620; 1 Shearm. & Redf. Neg. § 255; 2 Thomp. Neg. 658-666, 740; Jones, Neg. of Mun. Corp. §§ 38, 39, 149-158; Pollock, Torts, 51, 52; Savannah v. Cullins, 38 Ga. 334, 95 Am. Dec. 398; Hannon v. St. Louis County, 62 Mo. 313; Bailey v. New York, 3 Hill, 531, 38 Am. Dec. 669, on appeal, 2 Denio, 433; Clark v. Peckham, 9 R. I. 455; Pennoyer v. Saginaw, 8 Mich. 534; Cumber land & O. Canal Corp. v. Portland, 62 Me. 504; Diamond State Iron Co. v. Giles, 7 Houst. (Del.) 556. The legislature may change, limit, or control the form of action, but it cannot do this tc such an extent as to practically relieve the tortfeasor from all responsibility for his negligence. Janson v. Atchison, 16 Kan. 358; Flynn v. Canton Co. 40 Md. 312, 17 Am. Rep. 603; Kirby v. Boylston Market Asso. 14 Gray, 249, 74 Am. Dec. 682; Taylor v. Lake Shore & M. S. R. Co. 45 Mich. 74, 40 Am. Rep. 457; Heeney v. Sprague, 11 R. I. 466, 23 Am. Rep. 502; Law v. Kingsley, 82 Hun, 76; Wenzlick v. McCotter, 87 N. Y. 122, 41 Am. Rep. 358; Moore v. Gadsden, 93 N. Y. 16; Rochester v. Campbell, 123 N. Y. 405, 10 L. R. A. 393; Babbage v. Powers, 130 N. Y. 281, 14 L. R. A. 398; Elliott, Roads & Streets, 539; Dill. Mun. Corp. 1272, 1273. Spruance, J., delivered the opinion of the court: This action was brought against the mayor and council of Wilmington to recover damages for injuries sustained by Sidney E. Ewing, one of the plaintiffs, on the 18th of October, 1894, occasioned by defective iron gutter plates covering a gutter extending from the adjacent property to the curb, across a certain footway or sidewalk in said city. It does not appear by whom said gutter plates were placed in said sidewalk, but they had been there more than twenty years, and had been broken and out of repair for at least a year before the accident. The action is founded upon the alleged negligence of the city in not keeping the said gutter plates and sidewalk in proper repair, and in suffering them to remain in an unsafe and dangerous condition. By § 31 of the charter of the city, the council was given power "to ascertain and fix the boundaries of streets, repair and amend the same, and provide for the paving thereof; to regulate and fix the ascent and descent of all streets; to direct the paving of footways and to prescribe the width thereof. The act of April 20, 1887 (18 Del. Laws, 352), created a street and sewer department, and gave to it "entire jurisdiction and control within the limits of said city of the streets, . . said jurisdiction and control to extend from building line to building line, and the same rights and powers, and the same authority over the said streets, as were theretofore "held and exercised by the council." .. to The city charter further provided, in sub- | paved a certificate that it has been done acstance, as follows: cording to the proper ground plan and regulation of the city. And no owner of property to whom such certificate is thus given shall be liable for any change or error of regulation, or subsequent curbing or paving of the same property by the street and sewer department in consequence of such change or error, but the same shall be defrayed by the street and sewer department.” "Sec. 119. That, upon application of certain freeholders residing or holding property on any street, the board of directors of the street and sewer department are authorized, in their discretion, to require the street commissioners to cause the footways of such street to be paved with such material as the case may require, and fix the curbstones agreeably to the ground plan and regulations of the city. Upon the completion of such paving and curbing, the same are to be measured by the chief engineer, and such measurement transmitted by him to said board; and said board is to have the cost and expense of such paving and curbing assessed upon the owners of property bordering or fronting on the street, according to the number of feet in the street line of such property, and such assessment is to be entered in a record book, and from the time of such entry such assessment is made a lien upon the lands and buildings fronting on such street. The said board is to have a transcript of such recorded assessment transinitted to the city auditor, to be recorded in his office. The said board is forthwith to present to each owner or person having charge of such property a bill for such expense so assessed to such owner; and, in default of payment within sixty days, provision is made for the collection of the same, with costs, by the sale of such property. "Sec. 120. The owner of any ground may pave his, her, or their own front or fronts, provided it be completed within twenty days from the day of fitting the curbstone, and notice thereof given to such owner. All of the above-recited provisions were in force for several years before and at the time of the accident in question, and are believed to be all of the statute law material for the consideration of this case. The defendant requested the court below to charge the jury that, “if the jury believe that the defective condition of said sidewalk, if said sidewalk was defective, was not caused. by the city or any of its authorized agents, then its verdict niust be for the defendant.' The court refused said request, and charged the jury, in effect, that the charter having imposed upon the city the duty to keep the sidewalks in repair, and the courts having defined that duty, and the liability of the city arising from its default in the performance of such duty, the legislature had no right so to amend the charter as to exempt the city from such liability, and that the act of April 24, 1889 (18 Del. Laws, p. 889), being the last clause of § 121 of the amended charter above recited, "is, as far as this case is concerned, unconstitutional and void, and presents no defense to this action." To this charge, and refusal to charge as requested, the defendant excepted; and the assignment of errors covers these and other points in the charge, not necessary now to be stated. jury rendered a verdict against the defendant, on which judgment was entered. The "Sec. 121. The street and sewer department shall have full power and authority to compel the paving and repairing of footways In the case of Coyle v. Gray, 7 Houst. between the curbstone and the building line, (Del.) 44, the court of errors and appeals and to regulate and prescribe the settled the law of this state as to the power mode of paving or repairing footways and of the legislature over municipal corporathe material to be used therein. The tions. It was there held that a municipal street and sewer department may, however, corporation is "a body politic and corporate at its option, pave or repair any footway of established by law to assist in the civil govthe city, and the expense of paving or repair-ernment of the state with delegated authoring the same shall be assessed against the premises fronting on said footways, and shall constitute a lien against such premises. The method of assessment and such proceedings as may be had thereon, shall be the same, as far as may be, as now provided by law in regard to paving and curbing footways in § 119 of this act. The owner of any premises fronting upon any footways shall be solely responsible for any damage that may result to persons or property by reason of any hole, excavation, or obstruction in or upon such footways, or from any defective condition of such footways: provided, however, that such hole, excavation, or obstruction or other defective condition of the footways aforesaid is not caused by the city or any of its authorized agents. "Sec. 122. Upon the completion of any paving or curbing as aforesaid, the chiet engineer of the surveying department shall give to the owner of the property so curbed and ity to regulate and administer the local or or and council of Wilmington is merely an territorial extent or its functions, and may change or modify its internal arrangement or destroy its very existence at discretion. ... The legislature can devest the council of any and every power and authority it possesses." In view of this decision, it is difficult to see how the question of the consent of the city to the amendment of April 24, 1889, could have been of any consequence; but if such consent was material, as it certainly was not, it may be fairly inferred from the fact that this amendment is incorporated in the charter as contained in the "Charter, Laws, and Ordinances of the City of Wilmington," published by order of the council in 1893, and from the further fact that this amendment was urged and relied upon by the attorneys of the city as its principal defense to this action. The sole question necessary now to be considered is whether that part of the said amendment which purports to relieve the city from liability for damages resulting from the defective condition of footways, except such as are caused by the city or any of its authorized agents, is unconstitutional and void. For the purpose of this inquiry, we may presume that the injury in this case was not, in the sense of the statute, caused by the city or any of its authorized agents. Many of the cases cited in the argument were upon the construction of statutes imposing certain duties upon municipal corporations in respect to streets and sidewalks, without expressly declaring the liability or nonliability of the corporation in case of default in the perform ance of such duties. The liability of a municipal corporation for injuries resulting from defective streets and sidewalks is either an express statutory liability or an implied liability. In general, but not uniformly, it has been held that, where the duty of control over the streets is imposed upon a municipal corporation, there is an implied liability, arising from default in the performance of such duty. Such has been the construction given by the courts of this state to the charter of the city of Wilmington as it existed prior to the amendment of April 24, 1889; but these cases dealt only with the implied liability of the city under a charter which imposed upon it certain duties, and was silent as to its liability. Robinson v. Wilmington, 8 Houst. Del.) 409; Anderson v. Wilmington, 8 Houst. (Del.) 516. The charter, as it now is, and was at the time of the alleged injury in this case, is express as to the circumstances under which the city shall and shall not be liable. "If," as is said in Shearm. & Redf. Neg. § 124, "the statute, either expressly or by necessary intendment, enacts that the corporation shall not be subject to liability, there is the end of the matter." The power to alter, modify, or take away the liability of municipal corporations for injuries sustained from defective streets and sidewalks has been frequently exercised by state legislatures, and sustained by the courts. In Watson v. Tripp, 11 R. I. 98, 23 Am. Rep. 420, it was held that it was the duty of the city to keep its highways in safe condition, and that the city could not devest itself of its capacity to discharge that duty, either by contract or ordinance, unless authorized by statute so to do. O'Harra v. Portland, 3 Or. 525, was an action against the city for injuries to the plaintiff occasioned by a defect in a sidewalk which it was the duty of the city to keep in good order. The amended charter of the city provided that "the city of Portland is not liable to anyone for any injury to the person growing out of the condition of any streets." It was contended that this provision was unconstitutional and void. The court sustained the constitutionality of the provision and held that the city was not liable to the plaintiff. Rankin v. Buckman, 9 Or. 253, was an action against certain officers of the city of East Portland for injuries resulting from the alleged negligence of the defendants in not repairing a bridge. The charter of the city exempted the city from liability from accidents occasioned by the defective condition of streets, etc., and made the officers liable by whose wilful act or gress negligence the accident is caused. The court approved of the decision in O'Harra v. Portland, exempting the city from liability, and sustained the provisions of the charter making the negligent officers liable. Templeton v. Linn County, 22 Or. 313, 15 L. R. Å. 730, was an action against a county for an injury resulting from a defective highway. Held, that at common law a county was not liable in such case; that, the statute making the county liable in such case having been repealed before the accident, this action could not be maintained. The cases of O'Harra v. Portland and Rankin v. Buckman, were approved, and the court says: "If the legislature can constitutionally take away both the commonlaw and statutory right of action against a municipal corporation for an injury received from a defective highway, it certainly can withdraw the statutory remedy against a county." In Nichols v. Minneapolis, 30 Minn. 545, provisions of the charter of the city, that no action should be maintained against the city on account of injuries from defective condi. tion of any street, sidewalk, etc., unless such action be commenced within one year, nor unless notice be given within thirty days stating the place and time of the injuries, and the intention to claim damages of the city, were held to be constitutional. In reference to municipal corporations the court says: "Such corporations are creatures of the statute, and have such powers, duties, and obligations as the statute gives or imposes. The legislature is presumed to regulate these as in its opinion the needs and interests of the people within the prescribed territory require. In respect to liability for injuries by reason of defects in streets, the legislature may impose it on the corporation or not, as it deems most expedient; and it may prescribe the extent to which, or the conditions on which, it shall be liable, and the conditions on which the liability shall be enforced." street being out of repair, and providing that, if the defect has existed for twenty-four hours, the persons on whom the law may have imposed the obligation to repair, and the officers through whose negligence such defect remained, should be liable to the party injured, was held to be constitutional. Eustace v. Jahns, 38 Cal. 3, while holding that, under the charter of the city of San Francisco, it was the duty of the city to keep the streets in repair, and that it was not the duty of adjacent owners so to do, the court recognized the validity of the provisions of the charter exempting the city from liability for injuries from defective streets, and transferring such liability to the individual offi cers and agents of the city whose personal neglect or malfeasance occasioned the injury. In Van Vranken v. Schenectady, 31 Hun, 516, the provisions of the charter of the city, that the city should not be liable for injuries sustained by defective sidewalks unless actual notice of the defect be given to the council or superintendent of streets twenty-four hours before the injury, and that claims for injuries should be presented within three months, and actions brought within one year, were held to be constitutional. In McNally v. Cohoes, 53 Hun, 202, provision of the city charter, that the city should not be liable in damages for injuries occasioned by a street or sidewalk being out of repair, unless actual notice of the defect be given to the council or superintendent of streets twenty-four hours before the injury, was held to be valid, and In Hincks v. Milwaukes, 46 Wis. 559, 32 that without such actual notice there could Am. Rep. 735, it was held that the provibe no recovery. Gray v. Brooklyn, 50 Barb. sions of the charter exempting the city from 365, was an action against the city of Brook- liability for injuries occasioned by the condilyn for injuries sustained by reason of a tion of the streets or sidewalks, under cerstreet being out of repair. The charter pro-tain circumstances, were invalid, as granting vided that the city should not be liable in to the city a special immunity, not enjoyed damages for the nonfeasance or misfeasance by other like corporations, contrary to "the of the common council, or any officer of the principles of constitutional law," and in viocity or appointee of the council, of any duty lation of § 9 of article 1 of the Constitution imposed on them, or any of them, by the of Wisconsin, that, "every person is entitled statute, but that the remedy should be by to a certain remedy in the laws for all in mandamus, or other proceedings to compel juries or wrongs which he may receive in his the performance of duty, or action against person, property, or character." We make the members of council or officer. Held, that no criticism upon this application of the this statute was a defense to the city. The state Constitution, but we know of no "princourt says: "I am unable to see why the ciples of constitutional law" which prohibit same legislature may not create a city and the legislature from granting to a city spelimit its liability. The power is constantly cial privileges and immunities not enjoyed exercised." On appeal the decision below was by all other cities. affirmed. 2 Abb. App. Dec. 267. Fitzpat- The theory of the defense is that, in order rick v. Slocum, 89 N. Y. 358, was an action, to hold valid the provision of the charter exunder the above-recited provisions of the empting the city from liability, it must be charter of the city of Brooklyn, against cer- shown that there is provided a valid remedy tain officers of the city, to recover damages against the owners of the adjacent property for injuries by reason of the negligent opera-While the maxim "that where there is a tion of a bridge. The court held that the in- wrong there is a remedy" is, in general, true, jury was not caused by the act or neglect of it is subject to qualifications and exceptions. the defendant officers; that the said provi- It is well settled that an action of tort for sions did not exempt the city from liability to injuries from defective highways will not lie discharge a duty resting on it which it has against a county, in the absence of a statute not devolved upon one of its officers. The giving such action. Carter v. Wilds, 8 court says, however, that "the views here Houst. (Del.) 14; Hill v. Boston, 122 Mass. expressed are not in conflict with anything 344, 23 Am. Rep. 332; Templeton v. Linn decided in the case of Gray v. Brooklyn." County, 22 Or. 313, 15 L. R. A. 730. Nor Hardy v. Brooklyn, 90 N. Y. 435, 43 Am. could such an action against the state be Rep. 182, is to the same effect. In Bieling maintained. The legislature had the right v. Brooklyn, 120 N. Y. 108, the right of the to impose on the abutting owner the duty of legislature to exempt the city from liability repairing the footways in front of his propin certain cases specified in the charter, as erty, and, considering all of the above-rebefore set forth, was distinctly recognized. cited provisions of the charter together, it is The court says that the city is liable, "ex- by no means certain that they have not done cept so far as qualified by the statute; so; and, beyond doubt, the amendment of that, to relieve itself from such re- April 24, 1889, purports to make such owner sponsibility it must be made to appear that liable for damages resulting from the defectcause of the injury complained of ive condition of such footways not caused by is within the provision of the stat- the city or its agents. We do not, however, ute exempting the city from liability. That consider it necessary in this case to deterdefense was not, by the evidence in the pres-mine whether the legislature has imposed ent case, established." the In Parsons v. San Francisco, 23 Cal. 463, a statute exempting the city of San Francisco from liability for injuries occasioned by a upon property owners the duty of repairing |