
    GEORGE DILLINGHAM vs. THE HAWAIIAN GOVERNMENT.
    Exceptions.
    Hearing, April 20, 1893.
    Decision, April 29, 1893.
    Judd, O.J., Bickerton J., and Cooper, Circuit Judge.
    (Erear, J., baying been of counsel in tbe case, by request Circuit Judge Cooper sat in bis stead.)
    Action against the Hawaiian Government for damages for personal injuries to plaintiff for allowing an excavation in a street in Honolulu to remain without sufficient warning- lights at night, into which excavation plaintiff, driving a horse and buggy, was precipitated and injured. The Court was requested by defendant’s counsel to charge the jury as follows : “If the jury find that the Road Board made the excavation, it was their duty to place lights at the scene of the accident; and whether .they failed to do so or not, you .must find a verdict for the defendant, as the Road Board, and not the defendant, is liable.”
    The statute, Section 2 of the Act of 1890, prescribes that the Road Boards shall have the entire charge and control of the public labor on all roads, bridges and public highways, supervision and control of the expenditure of road taxes and moneys appropriated by the Legislature. The Minister of the Interior appoints the road supervisors on the nomination of the Road Board, and removes them at their request.
    Held, it was not in error to refuse to so charge.
   Opinion of the Court, by

Judd, C.J.

Tbe action was to recover damages of tbe Hawaiian Government for injuries to tbe person of tbe plaintiff on tbe 16tb of August last, tbe declaration alleging that tbe defendant by its servants dug a large bole in King street, Honolulu, covered its bottom witb stones and heaped up a large mound of earth near it, obstructing the highway, and negligently left the hole in the night time of that day without, placing or keeping any light or signal there to indicate danger, and in consequence of which negligence the carriage of plaintiff was driven into the hole and broken, and plaintiff was thrown out upon the stones and severely injured and several of his bones broken, whereby he suffered great pain-, and expense, etc. The jury found a verdict for plaintiff, $1000.

At the close of the trial the Court was asked to charge the jury, among other requests, “If the jury find that the Eoad Board made the excavation, it was their duty to place lights at the scene of the accident, and whether they failed to do so or not, you must find a verdict for the defendant, as the Eoad Board and not the defendant is liable.”

This was refused and exceptions duly perfected bring the question to this Court.

, In the ease of Peter High vs. The Hawaiian Government, decided December 24, 1892, we held that the Act of 1888 (Chapter 51) allowing suits by persons who have claims against the Government to be brought, if the Justices of the Supreme Court shall be of opinion that the claim is a fair subject for' judicial investigation, includes actions of tort committed by the officers or agents of the Government. In that case the tort complained of was committed by laborers under the direction of the Eoad Supervisor, who, as the law then stood, was appointed by the Minister of the Interior and removable by him. That decision holds that the Eoad Supervisor was a state officer and agent, and not the private servant or agent of the Minister, he being required by law to make the appointment, and that, therefore, the state was responsible for his acts done within the scope of his employment and authority.

The present ease differs from that in these respects, that now the Legislature has provided by the Act of 1890 (Chapter 82, Section 2) that the “Eoad Boards shall have charge and control of the public labor on all roads, bridges and public highways, within their respective districts, and shall have the supervision and control of tbe expenditure of all road taxes and all moneys appropriated by tbe Legislature •and used in making and repairing the same, and in sucb amounts as tbe respective Boards or a majority of tbe members thereof may decide.” Tbe Minister of - tbe Interior shall, “upon tbe nomination of tbe respective Eoad Boards or a majority of the respective Eoad Boards, appoint a competent person in each taxation district of tbe kingdom to be Eoad 'Supervisor for sucb taxation district.” Tbe Eoad Supervisor is also removable by tbe Minister of tbe Interior on tbe written request of tbe Eoad Board or a majority of its members.

Does this statute absolve tbe Government from responsibility for acts done by tbe Eoad Supervisors ? This involves tbe question whether tbe method of appointment of tbe official has changed tbe nature of bis responsibility. In the case of Peter High be was appointed directly by tbe Minister of tbe Interior. In tbe case before us tbe Eoad Board elected by tbe people nominates him and. tbe Minister appoints him. Does be cease to be an officer or agent of tbe Hawaiian Government because so appointed ? In tbe High case be was not, as we have seen, tbe agent of tbe Minister of tbe Interior, but of tbe Government. Tbe Minister is not tbe Government, for be is himself a servant of tbe Government. Tbe Government is tbe state representing the people. Tbe statute enables tbe people, through tbe Eoad Board elected by it, to control more directly in tbe care of tbe public thoroughfares. Tbe service is for tbe public benefit and it is paid for by tbe special road tax and by appropriations from tbe public treasury. Tbe Eoad Supervisor gives a bond to tbe Minister for tbe faithful disposition of tbe moneys thus expended. With all this in view we hold that tbe Eoad Supervisor is tbe servant of tbe Government and according to tbe rule of respondeat superior tbe Government is responsible for bis acts done in tbe scope of bis authority and employment, and tbe legal method through which be receives bis appointment is immaterial.

Much discussion has been bad in the Courts of tbe United States respecting the liability of municipal corporations and whether the acts complained of were done by servants of the corporation (that is, the particular city) or of the state itself* It must be borne in mind that no state of the United States, can be sued by its citizens without its consent and none are liable for the torts of its servants. “No sovereign state has ever held itself liable to individuals for the misfeasance* laches or unauthorized exercise of power by officers and agents.” Gibbon vs. U. S. 8 Wall. 269.

In this respect the Hawaiian Government is peculiar, having by the Act of 1888 (Chapter 51) surrendered its exemption from suit on account of the torts of its servants. In< the states of the United States the effort of the plaintiff is to establish that the act was done by a servant of a municipality, for this can be sued whereas the state cannot be.

Judge Dillon, in 2 Municipal Corp., Section 974, says, “If' the corporation appoints or elects the servants or agents, and can control them in the discharge of their duties, can continue or remove them, can hold them responsible for the manner in which they discharge their trust; and if those duties relate to the exercise of the corporate powers, and are for the peculiar benefit of the corporation in its local and special interest, they may be regarded as its agents or servants and the maxim of respondeat superior applies.” The superior in this case being the corporation. “ But if, on the other hand, they are elected or appointed by the corporation, in obedience to the statute, to perform a public service not peculiarly local or corporate, but because this mode of selection has been deemed expedient by the legislature in the distribution of the powers of the Government, if they are independent of the corporation as the tenure of their office and the method of discharging their duties, they are not to be regarded as the servants of the corporation for whose acts or negligence it is impliedly liable, but as public or state officers, Avith such poAvers and duties as the statute confers upon them, and the doctrine of respondeat superior is not applicable.” That is, the municipal corporation would not be liable if they were tbe servants of tbe state. In onr case tbe Road Board is not a corporation, and tbe service of tbe Road Supervisor is not peculiarly local, but is for tbe public benefit, since tbe central government through tbe Road Boards bas tbe care of tbe public roads and streets, and we bave no municipal corporations to wbom tbis duty might be entrusted.

In Hill vs. Boston, 122 Mass., 344, tbe Court beld that tbe city of Boston was not liable to a child for an injury suffered by reason of tbe unsafe condition of a staircase in a school bouse which was provided by tbe city under tbe general law, on tbe principle that no private action unless authorized by express statute, can be maintained against a city, for tbe neglect of tbe public duty imposed upon it by a law for tbe benefit of tbe public and for tbe performance of which tbe corporation receives no benefit or advantage.

Tbe counsel for tbe defendant relies upon Maximillian vs. Mayor, 62 N. Y. 160. Here the Court beld that where by legislative enactment, a municipal corporation is required to elect or appoint an officer to perform a public duty, laid not upon it but upon tbe officer, in which it bas no private interest, and from which it derives no special benefit or advantage, such officer is not a servant or agent of tbe municipality, and for bis negligence or want of skill in tbe performance of bis duty, or for that of a servant wbom be employs, it is not liable] and tbis although tbe officer or servant bas in charge and tbe negligence is in tbe use of, corporate property. In tbis case tbe duties imposed by law upon tbe commissioners of public charities and corrections were public in their character and from their performance no especial corporate benefit was derived. Accordingly it was beld that tbe city corporation was not liable for tbe negligence of tbe commissioners in driving an ambulance belonging to tbe city which struck and caused tbe death of plaintiff’s intestate. Tbe decision is based upon tbe principle that tbe commissioners were state officers discharging a public duty and so tbe city was not liable, and if tbe state of New York was capable of being sued, it would follow tbat, on tbe doctrine of respondeat superior, it would be liable. Tbis is our case exactly. Here we bold tbat tbe Road Board is an agent' of tbe general government discharging public duties for tbe public benefit, and whether tbe acts complained of are done by it or by tbe Road Supervisor nominated by it, tbe Government is liable under tbe Act of 1888, referred to.

A. S. Hartwell, of counsel for plaintiff.

C. Creighton, for defendant.

We therefore bold tbat it was not error to refuse tbe instruction requested and overrule tbe exception. Having arrived at tbis result it is not necessary to discuss tbe first point made by plaintiff, tbat tbe instruction should not have been given in tbe form presented because it assumes certain facts to be-true which should be left to tbe jury.  