McConnell v. Dewey. etc. of Lyme Regis, was soon followed by that of Adsit v. Brady, 4 Hill, 632, though in the latter it is said, that the "neglect should have been charged to be willful and malicious." And this departure from the common law doctrine has ever since been followed in the courts of New York. And in Robinson v. Chamberlain, 34 N. Y., 389, the doctrine of liability to private action for negligence is extended to all officers, except that "reason and public policy alike exempt judicial action from liability, in order to secure the perfect independence of the judiciary and for other controlling reasons." Is this departure from the earlier adjudicated cases in New York sustained by the common law? I think not. On the contrary, the doctrine that a private action cannot be maintained, at common law, for an injury sustained by neglect of one whose duty is to repair highways, seems to be a very ancient one. In Brook's Abr., Title, Action on the Case, it is said upon the authority of the Year Books, that if a highway be out of repair, so that a horse was ruined and injured, no action lies by the owner against him who ought to repair it, for it is a public matter and ought to be reformed by presentment; and this doctrine was affirmed in the case of Russell v. Men of Devon, 2 T. R., 608, in which Ashurst, J. delivered the opinion, and after giving other reasons why the action could not be sustained, says: "But I think the case cited from Brook's Abr. is a direct authority to show, that no action could be maintained; and the reason of that case is a good one, namely, because the action must be brought by the public.” That case was followed in the case of Riddle v. The Proprietors, etc., 7 Mass., 186, also in Waltham v. Kempfer, 55 Ill., 349, in which the court says, that with but few exceptional cases, this doctrine of non-liability to private action, at common law, has been held ever since. McConnell v. Dewey. the case of Russell v. The Men of Devon. Dunlap v. Knapp, 14 Ohio State, 68. In Young v. The Commissioners of Roads, 2 Nott & McCord, 537, it is said, that "it is difficult to imagine a more prolific source of litigation than would be found. in the responsibility of commissioners of roads, in private actions, for neglect of duty to every individual who may be injured by such neglect. In the case of Russell v. The Men of Devon, it was held, that such action would not lie against an overseer of the roads, for an error of judgment in the execution of his trust. No case can be found in which such an action has been sustained. Where an officer has been appointed to act, not for the public in general, but for individuals in particular, and from each individual receives an equivalent for the services rendered, he may be responsible in a private action for a neglect of duty, but where the officer acts for the public in general, the appropriate remedy for his neglect of duty is a public prosecution." Harmon v. Tappenden, 1 East, 555. In the case of The City of Providence v. Clapp, 17 How., 167, the liability is founded on the thirteenth section of the statute of Rhode Island, which provides a remedy by indictment, and also a liability "to all persons who may in any wise suffer injury to their persons or property by reason of any such neglect." But the court say, that, "it is admitted, that the defendants are not liable for any injury complained of at common law, but that the plaintiff must bring the case within the above statute to sustain the action." Cooley on Const. Lim., 247. Mower v. Leicester, 9 Mass., 250. Farnum v. The Town of Concord, 2 N. H., 392. Adams . Wiscasset Bank, 1 Me., 361. Baxter v. Winouski Turnpike, 22 Vt., 123. Eastman v. Meredith, 36 N. H., 284. Trustees, etc., v. Cottom, 11 Ind., 216. And in Freeholders v. Strader, 3 Har. (N. J.), 118, after a careful McConnell v. Dewey. review of the English and American cases, and holding the common law doctrine of non-liability to private action in such case, it is said, that "from the earliest times, both in England and in this country, the immediate duties of attending to the erection and repair of public bridges have been placed by law upon some public officer, chosen for that purpose; and yet not a solitary case is on record of such public officer having been held liable for damages to individuals by reason of a neglect of his public duties." Shearman and Redfield on Negligence, section 166, say, that, "in speaking of the liability of non-judicial public officers to civil action by private persons, it will be found convenient, if not indeed necessary, to a proper understanding of the decided cases, to make a distinction between those officers whose duties are of a general public nature, and who act for the profit of the public at large, and that other class of officers who are appointed to act, not for the public in general, but for such individuals as may have occasion to employ them for a specific fee paid." Upon this distinction, it seems the common law rule is founded, and is sustained by reason and principle, for in the one case, the officer acts for the public in general, and the manner in which he executes his trust is a matter between him and the public; but in the other, he acts for the individual for a reward emanating from him, and, therefore, the manner in which he performs his duty is a personal matter between him and the individual; and it seems, that in the former case, the rule can only be changed by direct legislative enactment; and I understand that the right of private action for an injury sustained by reason of the public roads being out of repair, is given by statute in the New England States, and in Wisconsin, Alabama, and Georgia, and also in Missouri, when there is willful neglect to keep the roads in repair, and in Iowa, upon notice in writing that any McConnell v. Dewey. bridge, or other portion of the public road is unsafe, and the same is not repaired. Would it not, to say the least, be an unwise, if not a dangerous exercise of power, for courts, in contravention of the settled rules of the common law, to make laws giving the right of private action against public officers, whose duties are of a general nature, and who act for the benefit of the public at large, and not for the individual for reward therefor? And as a road district consists of a political sub-division of a county, in and for which a supervisor is elected, is it not alone within the province of the legislature to define his duties and legal responsibilities? The legislature have done so; and the tenth section of the statutes relating to public highways provides, that if the supervisor neglects to keep the roads in his district in good repair, as the means under his control would reasonably enable him to do, he shall be liable on his official bond to pay a fine, to be recovered by civil action before any justice of the peace in the county. It is not to be presumed, that the legislature intended to charge the officer entrusted with the repair of roads and bridges with any greater responsibility by action than the penalty provided by statute, for neglect of duty. If it had been the legislative intent to introduce a new remedy for the benefit of individuals, it would certainly have said so by express provision, giving the injured party the right of private action against the officer. But again, section sixteen provides, that the county commissioners may let contracts to the lowest competent bidder for the improvement of such roads as may be of general necessity, and to pay for the same by orders on the county treasurer, payable out of the county road fund. Then, if the road (and a bridge is a part thereof), is of general necessity, and if a private action would lie, who is liable to such action, the county for the neglect of the com White v. The B. & M. R. R. Co. missioners to make the improvement, or the supervisor for his neglect to do so? May it not be difficult to deter. mine which would be the responsible party? It seems clear, that the responsibilities of a public officer who acts for the public at large only, must be defined by legislative authority; and that the right of private action for an injury occasioned to an individual by reason of a defect in a public road or bridge can only be given by legislative enactment, and, therefore, we are of opinion that the judgment of the court below must be affirmed. CHARLES C. WHITE, TREASURER, AND THE COUNTY COM 1. Government Grant of Lands to Railroad. Under section 2. : TAXATION OF RAILROAD LANDS. The question of the taxation of lands, where there is no exemption in the grant, is governed by the laws of the state. ERROR from the district court of Lancaster county. The action was brought by the defendant in error, who was plaintiff in the district court, to enjoin the |