
    James B. Dunlap v. Hiram Knapp.
    Ho civil action will lie against a supervisor of roads and highways, at the suit of an individual, to recover damages for an injury which he has sustained, in consequence of the neglect of the supervisor to keep a bridge within his district in repair. The only remedy for such neglect is a prosecution under the statute for the penalty it prescribes.
    Error to the court of common pleas of Geauga county. Reserved in the district court.
    The original petition filed by the plaintiff Dunlap against the defendant Knapp, in the court of common pleas of Geauga county, alleges that the defendant was supervisor of highways in Munson township, in that county; that within Ms jurisdiction, a bridge, over a stream of water running across the public highway, had become, by reason of decay of some of its timbers, impaired and wholly unsafe for the passage of teams and travelers ; that said supervisor had knowledge of the dangerous condition of the bridge, and for two weeks willfully neglected and refused to repair the same ; that at the expiration of said two weeks, the plaintiff, being in ignorance of the condition of said bridge, carefully, in the ordinary pursuit of his business, drove his team on to the bridge,, when said bridge broke, and plaintiff’s team was precipitated into the water below, and his horses were injured, wagon broken, and the lading in the wagon destroyed; to plaintiff’s damage of $800 ; that plaintiff’s loss was the direct result of the willful neglect of defendant in the premises, and asks judgment against him for the amount of Ms damages.
    The defendant demurred to this petition, and assigned for cause of demurrer, that the petition did not state facts sufficient to constitute a cause of action. The common pleas sustained the demurrer, and judgment was entered accordingly: To reverse this judgment the plaintiff filed his petition in error in the district court, wherein the case was reserved to tMs court for decision.
    The assignment of error is that the common pleas sustained the demurrer to the petition.
    
      
      W. 0. Forrist, for plaintiff in error :
    When, by statute, the performance of a public duty is cast upon an individual or officer, and he willfully neglects to perform that duty, by which neglect another suffers some special damage, the person thus guilty, is liable in an action on the case, for such damages, in favor of the party injured; unless the statute creating the duty,'provides a peculiar and exclusive remedy. Comm’rs of Brown County v. Butt, 2 Ohio Rep. 348; Anderson v. Thomas et al., 9 Ohio St. Rep. 568; Butler v. Kent et al., 19 Johns. 226; Mayor, etc. v. Firze, 3 Hill, 612; Henly v. Mayor, etc., 5 Bing. 91; 2 Bla. 906, 1141; 2 Lord Ray. 938; Hayes v. Porter, 9 Shep. 371; Couch v. Steel, 3 Ellis & Black. 402.
    Does the plaintiff in the petition stand within the rule, and show himself entitled to its operation ? Confessedly so, unless sec. 40, Swan’s Stat. 821, which provides a penalty, to be enforced against a supervisor, by the proper township if he neglects to perform his duty, of a sum from $5 to $50, takes our case out of the rule.
    It is claimed that by the last-named section, a penalty is provided against the misfeasance or nonfeasance of the supervisor, and that upon well-established legal doctrines, this penalty is the exclusive remedy.
    Counsel for the plaintiff can afford to admit that when a statute gives a new right and the means to vindicate it, or a new power and the means to exercise it, the means to vindicate the one, or to exercise the other, given by the statute, and those alone, are to be exercised and employed, in either case. The common law has no aid to render. And, as I understand it, this is the extent of the defendant’s claim in the case; and in this, it is worthy of notice that the right and the remedy go together — they must so go together to be of any value, to amount to a remedy.
    In the case at bar, the public has an interest in the performance of the duties, all the statutory duties of a supervisor, as a public, and each individual, as a component part of that public, has a right a.nd interest in the performance of, at least, a portion of his duties, distinct and separate from the public; each individual has a right as already claimed to safe passage over bridges, parts of highways; this is the individual right. Now the penalty in the statute is not, in any case, given to the individual, he may not recover it; it is not recovered for his benefit, but is given to the public, to be recovered in an action by the public and for the public benefit, and is therefore a statutory remedy given to the public, to enable it to vindicate its right, and so far as the public is concerned, is the exclusive remedy, and thus far the admitted doctrine applies.
    Rut a careful examination of the statute will show that it nowhere gives any remedy to the individual to vindicate his right; — on this subject, the statute is altogether silent; in the case of the individual the statute gives him a right, to demand the faithful performance of his public duties, by the supervisor, he having an interest therein so far as bridges and highways are concerned, and gives him no means to vindicate and enforce his right against a delinquent supervisor. Shall the statutory remedy given to the public, for its benefit, exclude the individual from all remedy, for whatever injury he may suffer ? We think not, for we submit the law to be otherwise. Sedgwick on Stat. and Con. Law, 95; Couch v. Steel, 3 Ellis & Black. 402 ; Rowning v. Goodchild, 2 W. Bla. 906; Beckford v. Hood, 7 T. R. 620; Hasbrouch v. Baker, 10 Johns. 257; Farmers’ Turnpike v. County, Ib. 402; Hayes v. Porter, 22 Maine, 371.
    The very fact that no case, like ours, is found in our reports, is made the foundation of an argument, heretofore urged by the defendant, in support of his demurrer, and that is the novelty of the case; he says that no such action has been heretofore brought and sustained, and therefore none can or ought to be maintained. But it is submitted by the plaintiff, that this argument has no force, in the case at bar, for obvious reasons; among them are these: our action is only new in the instance, and not in the principle; we ask the creation of no new principle, to control the case; all we ask is the application of a welLestablished, long-recognized principle of the law, to a new class of facts, a new party; and when this is done, the argument of novelty has no force. Vide, 17 Taunt. 515.
    
      Thrasher, Turfee & Hathaway, for defendant.
    We deny'that the proposition of counsel for plaintiff in error, contains a correct statement of the law. We believe the following proposition does: “ That where a statute creates a new obligation or duty, not before existing at common law, and enforces the performance thereof in á specified manner, performance can not be enforced in any other manner, and no liability -exists beyond that prescribed by the statute.” 10 Pick. 383. This is precisely the case of a supervisor of highways in Ohio. His duties, his office and all things connected therewith, were wholly unknown to the common' law, but were all created by statute, and the performance of his duties is enforced by specified penalties. That being_ the case he is not liable beyond the penalty prescribed by the statute. Stafford v. Ingersoll, 3 Hill, 41; Ib. 621; Renwick v. Morris, 7 Hill, 575; Alma v. Harris, 5 Johns. 175; 6 Mass. 45; 14 Mass. 286; 1 Blackf. 405; 7 Blackf. 556; 5 Cowen, 165; 17 London Law Journal, 163; 1 McClel. & To. 450.
    It is apparent from the statutes, that it was the intention of the legislature to limit the liability of a supervisor, to the penalties specified therein. Sec. 40 of Supervisor Act, S. & C. Stat. 1316; sec. 18, lb. 1311; secs. 30, 35, 37, lb. 1313,1314; sec. 11’ of Commissioner Act, lb. 245.
    If the law had been as claimed by the plaintiff in error, such actions as the present against supervisors must have been of frequent occurrence. The fact that no case of the kind can be found, is conclusive that no such a right of action exists. The action is not only new in instance, but also in principle. It would be irrational to suppose, that there had existed millions of instances of rights of action against supervisors (as there must have in this country ever since its settlement by Europeans), and the plaintiff was the first man who thought to bring the action.
    The fact is, supervisors are not liable beyond the penalties prescribed in the statute. The law has been so understood by the courts and people of the state.
   ’ Peck, C.J.

It is undoubtedly true as a general rule, that when, by statute, the performance of a public duty is cast upon a public officer, and he willfully neglects to perform that duty? by which neglect another suffers some special damage, the person thus guilty, is liable in an action on the case, for such damages, in favor of the party injured, unless the statute creating the duty, provides a peculiar and exclusive remedy; and that such private remedy is not taken away, by the mere an nexation of a penalty for the public wrong, recoverable by indictment or at the suit of a common informer.

But this, like all other mere general rules, is subject to exceptions, and, among others, as ancient perhaps as the rule itself, is this, that where the duty is imposed by statute upon minor political organizations or quasi corporations without their consent, for purposes of public policy, and not for their benefit but that of the public at large, such omission of duty lays no foundation for the recovery of private damages, unless such recovery is expressly authorized by the s'tatute.

The primary duty of keeping the public roads and bridges in this state in repair, is cast by the statute upon the townships in which they are located. The trustees are authorized to establish, alter and vacate township roads, to lay off the township into suitable road districts, and to determine the number of supervisors. They are also directed to apply the funds arising from the county road tax, to the building of bridges and repair of roads. All the male persons of the township, between the ages of eighteen and fifty-five, are required to perform two days’ labor in each year upon the roads, at the call and under the direction of the supervisor, and in extraordinary exigencies, they may be required to 'labor an additional day. It is apparent then, that the entire burden of keeping the roads in repair is cast upon the township, and the action of the trustees in the first instance, and of the supervisor in the second, are but so many instrumentalities provided by law, for the performance of this duty by the people of the township, and the liability of the supervisor should be commensurate only with that of the township, for an omission of the duty he is thus delegated to perform. The statute which imposes the duty of repair upon the supervisor, and, for that purpose, permits the application by him, to ¿, limited extent, of the labor and funds of the township, while it subjects him to a penalty for an omission of the duty, does not expressly authorize suits for special damages resulting to individuals from its non-performance.

At common law, the several parishes in England were bound to repair all highways within their respective limits, unless,by prescription or otherwise, they could cast the burden upon particular persons or other corporations, and were subject to indictment if they failed to perform the duty; but were not liable to the suits of individuals, for special damages occasioned by the want of repair. This latter proposition is to be found in Bro. Abr. title sur le case, pi. 93, and is now the settled law in England. See Russell v. The Men of Devon, 2 D & E. 667; Makinnon v. Penson, 25 L. & E. 457. It has alsc been very generally affirmed in this country. In Mower v. Leicester (9 Mass. 247), which was an action against the. town of Leicester for damages to the horse of the plaintiff, caused by the bad repair of a bridge which it was the duty of the town, under the statute, to keep in repair, it is said to be well settled, that no such action would lie at common law, and that none could be maintained under the statute, as no such private action was thereby given. The court remark that, “corporations created for their own benefit, stand upon the same ground as individuals,” and are liable for neglect of duty at the suit of the party injured thereby; but that “ quasi corporations, created by the legislature for purposes of public policy, are subject by the common law to an indictment for the neglect of duties enjoined on them, but are not liable to an action for such neglect, unless the action be given by some statute.” The like distinction is also taken by C.J. Parsons, in Riddle v. Proprietors of, etc. (7 Mass. 186), who there says: “We distinguish between proper aggregate corporations, and the inhabitants of any district, who are, by statute, invested with particular powers without their consent. These are in the books sometimes called quasi corporations; of this description are counties and hundreds in England, and counties, towns, etc., in this state. Although quasi corporations are liable to information or indictment, for a neglect of a public duty imposed on them by law, yet it is settled in the case of Russell v. The Men of Devon (2 D. & E. 667), that no private action can be maintained against them for a breach of their corporate duty; unless such action be given by statute.” So, in Bartlett v. Crosier (17 Johns. 439),-it was held, that a suit against an overseer of highways, could not be maintained by an individual to recover damages to his mare, occasioned by the overseer’s neglect to repair a bridge, where such right of action is not expressly given by the statute. The chancellor, in delivering the unanimous opinion of the court, says, that the law renders public officers liable to special damages for a neglect of duty only in those cases, “ in which their services are not gratuitous or coerced, but voluntary and attended with compensation, and where the duty is entire, absolute and perfect.

The services of a supervisor under our statute, can not be said to be entirely voluntary. He is subject to a fine, if he refuses to serve when elected to the‘office. His duty is not entire, it being shared with others. The township trustees are required, by the same statute, to apply the road tax to the building of bridges and the repair of roads, and to contract for the erection of bridges and to accept them when completed. Nor is his duty “ absolute and perfect.” It is, beyond question, dependent upon having within his control unappropriated funds and labor, belonging to the township, and sufficient to make the required repairs. The present ability of the supervisor is not stated in the petition, and it is said in the last case, that such omission is not aided by verdict. He is only bound under special circumstances occurring while he is in office ; and it is those special circumstances that create the duty, and not the office by itself. Both must concur to create the duty, and the absence of the one, is just as fatal to the right of action, as the absence of the other.

Lynn v. Adams, 2 Carter (Ind) Rep. 143, is a case very similar to the one under consideration. It was a suit against a supervisor for willful neglect, causing the death of plaintiff’s horse, and it was held in that case, “ that a private action will not lie against a supervisor for damages sustained fro m his neglect to keep the roads and bridges in his district in repair.” Smith, J., examines the authorities at some length, and arrives at the conclusion, that the supervisor could not be subjected in the action; and under a statute similar in that respect to ours, he also holds that the services of the supervisor are not voluntary within the rule. He also places the liability of the supervisor upon the same grounds as that of the township; as was also done by the chancellor in the case in 17 Johnson, supra. See also Morey v. Newfane, 8 Barb. 646.

In several of the states, provision has been made for the recovery of damages by private suit against towns for not repairing roads, bridges, etc., but in all of them it has been held, in strict affirmance of the common law rule we have adverted to, that the liability is created solely by statute, and can not, therefore, be extended beyond the precise statutory measure. See cases cited from "Vermont, New Hampshire, Maine, Massachusetts and Connecticut, in Angelí on Highways, 268.

These authorities seem decisive of the question raised by the demurrer, and show, conclusively, that the action in the c ourt below can not be maintained.

If there were any doubt as to the asserted liability of the supervisor in this case, a reference to sections 13 and 18 of the same statute would dissipate the doubt, and exclude all presumption of a legislative intent to attach any such liability to the duty imposed upon a supervisor. By those sections, persons injured by obstruct ons placed upon a road or highway, may sue the wrongdoer for the injuries inflicted; and the omission to reserve a similar right, in favor of persons injured by the neglect or misconduct of a supervisor, certainly, affords a strong presumption that no such remedy was intended. The office is one of no emolument, but of much perplexity; its duties onerous, its powers extremely limited, and its compensation trivial. No one now covets, but all seek to evade it. If to its other embarrassments, liability to private suits should be superadded, .no responsible. citizen would accept it, though «the penalty for refusal were increased many fold.

The supervisor was not, as an individual, under any obligation to repair the bridge, and the statute imposing the public duty does not confer a private right, nor impose a private duty as to third persons, as is done, where a deed is delivered to a recorder for entry, or a writ- to a sheriff for service and return. In the latter instances, and others of a similar character, the statute imposes a personal duty for the benefit of the person invoking its aid; and the officer would, doubtless, be liable for the special injury resulting from an omission to perform the duty enjoinedi Of this latter class also, are the cases of a refusal by the judges of an eleetion to receive a lawful vote tendered them (11 Ohio Rep. 372, 376), and a willful refusal by a supervisor to give a certificate for work done on the highway (Wright’s Rep. 86); both are breaches of a personal duty imposed by the statutes.

Laws imposing upon supervisors the duty of repairing roads and highways, and subjecting them to penalties for misconduct in office, have been in force in this state ever since 1804, and yet, counsel with all their industry, have not found a single well considered case, in which an action for special damages for a supervisor’s neglect to repair, has been maintained; although hundreds of instances must have occurred within that period, in which such injuries have been inflicted; and that fact alone, is strong, if not conclusive evidence, that, in public estimation, no such action is maintainable.

We will conclude this opinion by adopting the language of the chancellor, in the case cited from 17 Johnson, and by substituting “ supervisors ” for “ overseers ” (who discharge a similar duty in the State of New York); his remarks are peculiarly applicable to our condition. The learned chancellor says: “We have every reason to presume, that our legislature did not intend to charge the officers entrusted with the superintendence and repair of the public roads and bridges, with any greater responsibility, by private suit, than the penalty given against overseers for neglect of duty. If that had been their intention, and if they had meant to introduce a new rule on the subject, I think the law would and ought to have been more explicit. To sustain an action, at this day, against all former practice, is taking these officers by surprise. We have had our overseers from the first settlement of the colony; and the weight and responsibility of the trust, must have been understood and settled in public opinion, according to the English law.”

Judgment of the common pleas affirmed

Gholson, Brinkerhoee, Scott, and Ranney, JJ., concurred.  