“Now, no matter how great nor how numerous may be the difficulties in distinguishing between these capacities, it is established law that when a corporation exercises a purely corporate and proprietary or private function, such, for example, as the maintenance and operation of a municipal wharf or airport or public utility, or water system, from which it derives a revenue, it is subject to suit without statutory authority, the same as any individual similarly engaged.” (Emphasis added.)
How later courts described this case
- “Now, no matter how great nor how numerous may be the difficulties in distinguishing between these capacities, it is established law that when a corporation exercises a purely corporate and proprietary or private function, such, for example, as the maintenance and operation of a municipal wharf or airport or public utility, or water system, from which it derives a revenue, it is subject to suit without statutory authority, the same as any individual similarly engaged.” (Emphasis added.)
- “it is established law that when a [municipal] corporation exercises a purely corporate and proprietary or private function * * * it is subject to suit without statutory authority, the same as any individual similarly engaged”
- evidence of person repeatedly riding horse rapidly and carelessly about streets of city not habit evidence
Written by the judges who cited it.
The opinion
BAND, J.
(dissenting). Unless prohibited by some provision of the federal or state constitution, it is within the power of the legislature to provide that a city shall or shall not be liable for its failure to perform a municipal duty. It cannot, of course, destroy vested rights which would be a taking of property without compensation, nor can it impair the obligation of contracts. These are prohibited both by the federal and state constitutions. But no person has a vested right to a remedy for an injury which may or may not happen in the future because of some future tort.. The law creating or excluding liability for torts, which may or may not arise in. the future, is subject to change by the legis
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lature. See the prevailing opinion by Mr. Justice Strahan in
Templeton v. Linn County,
22 Or. 313, 319 ( 29 P. 795 , 15 L. R. A. 730). In my opinion, this change was made by the 1929 amendment of section 5-502, Oregon Code 1930, when it substituted for the word “omission” the word “commission”, which was some six or seven years before the accident complained of happened. Prior to that time, the statute of this state, as well as the former territorial statute, provided that for the acts or omissions of its officers, agents and employees a city was liable if injury resulted therefrom to a third party.
Now, the change in the statute by substituting the word “commission” for “omission” was evidently for some purpose or else it was a clerical error upon the part of the legislature. Whether it was wise to make such change was a question for the legislature, not the courts, and, if it was a clerical error, then, unless there is some ambiguity or absurdity in the amendatory act, this court would not be warranted to give to the amendatory act any different meaning from what its language imports. The power of courts to correct clerical errors in a statute can be exercised only when the error is so manifest from an inspection of the act as to preclude all manner of doubt and when the correction will relieve the sense of the statute from an actual absurdity and carry out the clear purpose of the legislature: Black, Interp. of Laws (2d Ed.), sec. 58; Endlich, Interp. of Stat., sec. 407.
It is a familiar rule, which has often been laid down by this court, that, where words in a statute are susceptible of two constructions, of which one will lead to an absurdity, the other not, the latter is to be adopted. To hold, therefore, that, when the legislature, by the amendatory act, substituted the word “commission”
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for “omission”, it intended to make no change in the statute and that cities should thereafter, as formerly, he liable for their omissions would defeat the very purpose which the legislature had in mind in amending the former statute since the words “omission” and “commission” mean two entirely different things and presumably were used by the legislature with the intention that they should be given their popular signification and not be used interchangeably as if meaning one and the same thing. To give to the amended statute that construction would lead to an absurdity.
Hence, whether the remedy of an injured person to sue a city for a failure to keep its streets in repair was a common-law remedy, as some of our decisions have held, or was a remedy created by statute, in either event, the legislature had power to limit or modify the liability of a city in whatever manner it saw fit to do. As so amended, the statute is controlling and should be given its proper effect.
For these reasons, I cannot concur in the majority opinion.