something else. He made "wine," as that term is primarily defined-the fermented Juice of the grape. Webster's New Interna tional Dictionary; the Century Dictionary; 40 Cyc. 2121. A secondary definition includes currant wine, gooseberry wine, loganberry wine, or, loosely, the unfermented juice of the grape or any fruit, used as a beverage. * "Wines are distinguished practically by their color, their hardness or softness on the palate, their flavor, and their being still or effervescing. * The leading character of wine, however, must be referred to the alcohol which it contains, and upon which its intoxicating powers principally depend. The amount of alcohol in the strong port and sherry as found in the market is from 16 to 25 per cent.; in hock, claret and other light wines, from 7 per cent. Wine containing more than 13 per cent. of alcohol may be assumed to be fortified with brandy or other spirit." Century Dictionary. [13] From the above it will be seen that much of the liquor taken from the defendant's possession, when measured by its alcoholic content, was of the best grade of wine, a fermented vinous liquor judicially known as an intoxicating liquor. From Nelson's Encyclopædia we take the following definition of "vinegar:" "The weak solution of acetic acid that is obtained by the oxidation of a dilute alcoholic liquor by the aid of the micro-organism, bacterium aceti. The percentage of alcohol must not rise above ten. The liquors most often fermented are cider, a special kind of beer, from which malt vinegar is obtained, or an inferior wine, from which white vinegar or wine vinegar is prepared." Referring to the defendant's excuse for possessing so much liquor, it may be possible that he intended to manufacture vinegar from his wine; but in view of the evidence we cannot set the verdict aside. The jury heard his testimony. They observed his appearance and demeanor upon the witness stand. They were the judges of his good faith. They heard him relate how he intended to turn his zinfandel wine into vinegar. They learned all the surrounding circumstances. They were fully advised, and capable of deciding the matter fairly, impartially, and intelligently. They no doubt wondered why darkness and secrecy accompanied defendant's labors in the lawful business of conducting a vinegar factory. Not only was the defendant unable to convince them, but he failed to raise in their minds a reasonable doubt. This case is affirmed. BURNETT, C. J., and BEAN and McCOURT, JJ., concur. ~755(2)—Implied 2. Municipal corporations When a city charter invests the city with exclusive control over its streets, and authorizes it to employ means necessary to improve and maintain them, a duty to the public is implied by law to keep them in a reasonably safe condition; but this implied liability does not arise where the charter imposing the duty expressly exempts the city from liability for failure to discharge the duty. 3. Municipal corporations 747 (2)-Liability of officers for injuries from defects in street unaffected by charter provision exempting city from liability. A charter of a municipality exempting it from liability for injuries from defects in the streets does not affect the right of action against officers or agents of the city, arising out of their negligent failure to discharge the duty imposed upon them of keeping the streets in repair. 4. Constitutional law 213-Municipal corporations 756-Statute exempting municipal corporation from liability for injuries from defects in streets held valid. Const. art. 1, § 10, providing that "every man shall have remedy by due course of law for injury done him," is subordinate to the doctrine that the state and its agencies cannot be sued without its consent, and does not render invalid a provision in a city charter exempting the city from liability for injuries from defects in streets, sidewalks, etc., unless it had actual notice of the defect in reasonable time to repair the same, and that the damages recovered shall not exceed $100. 5. Municipal corporations 733 (2)-In repairing roads, a city enjoys the state's immunity from private action. When the duty of keeping highways in repair is delegated to a municipality, in the discharge thereof the municipality exercises a governmental duty, and in the absence of statute, enjoys the immunity from private action that attaches to the state. 6. Municipal corporations 756-Where charter limits city's liability for injuries from defect in street to $100, plaintiff, seeking to recover more than that sum, should be nonsuited. In an action for injuries sustained from a defect in a street, in view of a provision of the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (205 P.) city charter that not over $100 could be recovered, where plaintiff sought to recover more than $100, she should have been nonsuited in favor of the city. 7. Municipal corporations 821 (3)-Evidence of negligence of municipal officials held sufficient to go to jury. In an action for injuries from defects in a street against a city and city officials charged with the duty to provide for the repair of streets and sidewalks, evidence of negligence of the city officials held sufficient to go to the jury. McBride and Bean, JJ., dissenting. In Banc. the condition or state of repair of the walk, for several years at least, prior to plaintiff's injury, with the exception that perhaps one or more members of the common council might have passed along the street or over the walk, directing casual observations thereat. No actual notice had been given defendant of any defect therein. There was some evidence that the board which broke and injured plaintiff had become weakened by decay; there was some evidence that the board broke because of a large knot therein, which so weakened it that it would not sustain the weight of a pedestrian without breaking; there was also evi Appeal from Circuit Court, Yamhill Coun- dence that the board which broke, together ty; H. H. Belt, Judge. Action by Catherine Platt against the City of Newberg and others. From a judgment of nonsuit in favor of defendant George Larkins and others, members of the Common Council of the City of Newberg, plaintiff appeals; and from a judgment in favor of plaintiff against defendant City of Newberg, the latter appeals. Reversed and remanded. with other boards along this portion of the sidewalk, had been permitted by time and inattention to become loose, and that the nails which originally held the boards in place had disappeared. R. W. Wilbur, of Portland, and C. R. Chapin, of Newberg (Wilbur, Spencer, Beckett & Howell, of Portland, on the brief), for appel lant. Earl C. Latourette of Oregon City, and B. A. Kliks, of McMinnville (C. D. & D. C. Latourette, of Oregon City, on the brief), for respondent. and imposes upon the corporation the duty of improving such highways and keeping the same in repair, and gives to it ample powers to secure the means and funds necessary to make such improvements and repairs. The powers and duties granted by the charter are vested in the mayor and council and their successors in office. The charter also provides for the election of a superintendent of streets, and prescribes as his duties that he shall keep himself Plaintiff instituted this action to recover damages for injuries, which she alleged she sustained because of the defective condition of a sidewalk in the defendant city. The defendant George Larkins was the mayor, and defendants L. F. Moore, Thomas Sutton, D. McCOURT, J. (after stating the facts as D. Coulson, W. W. Silver, and Q. M. Keiling above). The charter of the defendant city were members of the common council, of of Newberg was enacted by the Legislature said defendant city of Newberg. A trial was (Special Laws 1893, pp. 282-318), and vests had, and at the conclusion of plaintiff's evi- in the municipality exclusive authority and dence the court granted a judgment of non-control over the highways within its limits, suit in favor of the mayor and councilmen of said city, and denied a motion for like judg ment interposed in behalf of the defendant city. The trial resulted in a verdict and judgment against the defendant city of Newberg, and the latter prosecutes this appeal from that judgment. Plaintiff appeals from the judgment of nonsuit in favor of the mayor and members of the common council. The evidence disclosed that plaintiff is 79 years of age, and that on July 8, 1919, she was walking with her daughter along Willamette street, near Eighth and Ninth streets, in the city of Newberg, a short distance from the place where she had resided for a number of years, and that while she was proceeding along the sidewalk the daughter of plaintiff stepped upon one of the boards in the walk, which broke under her weight, causing the other end to tip up sufficiently to catch the plaintiff's foot or toe, whereupon she fell, severely injuring her arm and shoulder. It further appeared in the testimony that the sidewalk in question was constructed and laid about 10 years previous to plaintiff's injury, that no repairs thereof "The city of Newberg shall not in any event had been made since it was constructed, and be liable in damages to any person for an inthat no inspection or examination had been jury caused by any defect or dangerous place, made thereof, for the purpose of ascertaining at or in any sidewalk, cross walk, street, or For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "informed of the condition of all public streets, and public property, have the supervision of Provision is also made in the charter (section 144) limiting and restricting the liability of the municipality for failure or omission to discharge the foregoing duty, as follows: alley, bridges, public grounds, public buildings, | expressly exempts the municipality from liasewer, drain, gutter, or way, unless said city bility for failure to discharge this duty. shall have had actual notice of such defect or O'Harra v. City of Portland, 3 Or. 525; Randangerous place, and had a reasonable time kin v. Buckman, 9 Or. 253; Sheridan v. City thereafter in which to repair or remove such of Salem, 14 Or. 328, 12 Pac. 925; Mattson v. defect or dangerous place before the happening of such accident or injury, and in no case shall Astoria, 39 Or. 577, 65 Pac. 1066, 87 Am. St. more than one hundred dollars be recovered Rep. 687; Batdorff v. Oregon City, 53 Or. * from the city for such accident or in- 402, 100 Pac. 937, 18 Ann. Cas. 287; Pullen v. Eugene, 77 Or. 320, 146 Pac. 822, 147 Pac. 768, 1191, 151 Pac. 474, Ann. Cas. 1917D, 933; Humphry v. Portland, 79 Or. 430, 154 Pac. 897; Coleman v. La Grande, 73 Or. 521, 144 Pac. 468; Templeton v. Linn County, 22 Or. 313, 29 Pac. 795, 15 L. R. A. 730. * jury." The defendant contends that the abovequoted provision of the charter has the effect of defeating plaintiff's right of recovery in this action. On the other hand, plaintiff insists that it is beyond the legislative power to exempt a municipality from liability arising out of the failure to discharge the duty of keeping its streets in repair imposed by its charter, and further that the duty thus imposed is administrative and corporate in character, and that liability in like circumstances existed at common law, and any attempt by the Legislature to impair plaintiff's remedy to enforce the same, violates the guaranty of the Constitution that "Every man shall have remedy by due course of law for injury done him in his person, property or reputation." Section 10, art. 1, Oregon Constitution. The quoted provision of the Constitution, and related provisions, were borrowed from Magna Charta (12 Cor. Jur. 1287), and make the doctrine and maxim of the common law, "There is no wrong without a remedy," a fixed and permanent rule of law in this state. [1] A rule of the common law of equal dignity exempted the sovereign from being impleaded in the courts, and left the citizen without remedy for injuries sustained through the failure to discharge governmental duties. This latter rule still prevails in the United States. 25 R. C. L. 412. The state exercises the powers and duties of sovereignty, and neither it nor any of the agencies created by it for the discharge of governmental duties are liable to an action by a citizen for injuries arising from the failure to discharge such duties, unless the right of action is given by statute. [2] The inquiry, presented by the contentions of the parties to this appeal has been considered by this court in numerous cases. The decisions in those cases hold that, when a charter invests a municipal corporation with exclusive control over the streets within its limits and authorizes it to employ the means necessary to improve and maintain such highways, a duty to the public arises by implication of law to keep the streets that have been opened for travel in a reasonably safe condition, and for any injury that may result from failure to discharge such obligation, the city, without express statutory provision to that effect, must respond in damages, but that such implied liability does not arise where the charter imposing the duty [3] The foregoing decisions also declare that charter provisions like that of defendant city, exempting a municipality from liability, do not give any new right of action against the officers or agents of the city, charged with the specific duty of keeping the streets in repair, and hold that under such a charter, one injured by a defective street has, and always had, a right of action against such officers or agents for injury arising out of their negligent failure to discharge the duty imposed upon them, which right of action is unaffected by a charter provision exempting the municipality from liability. [4] Relying upon the rules of law declared in the foregoing decisions, the Legislature, so long as it exercised the power to create municipal corporations, incorporated in many municipal charters enacted by it, provisions for failure to discharge the duty of keeping exempting the municipality from liability streets in repair, and the power of the Legislature in that respect has been recognized by this court from an early day, and it would cise that power was firmly settled in this seem that the question of the right to exerstate. See cases above cited. However, the authority of the Legislature to exempt a municipality from liability in such circumstances was questioned in the recent cases of Colby v. City of Portland, 85 Or. 359, 166 Pac. 537, and Caviness v. City of Vale, 86 Or. 554, 169 Pac. 95. In thoses cases the subject was discussed for the purpose of elucidating other points, as the question of the power of the Legislature to exempt municipal corporations from such liability was not before the court. In the case of Caviness v. City of Vale, 86 Or. 554, 169 Pac. 95, Mr. Chief Justice McBride, referring to Colby v. Portland, supra, said: "In the case last mentioned we intimated a doubt as to the constitutionality of a charter provision which took away from a citizen a perfectly plain and efficacious remedy, and left in this conviction has grown stronger in the mind its place a partial and unsubstantial one; and of the writer from further consideration of the subject and examination of the authorities, as well as from a knowledge of the fact that the rule announced in O'Harra v. Portland and (205 P.) Rankin v. Buckman, and followed in other cas- [ mental duty for the benefit of the general es, has not been found in practice to be worka- public." ble to the extent of affording adequate redress to persons injured by reason of neglect in the repair of streets." Counsel for the plaintiff strenuously argue that the decisions in the cases of Colby v. Portland and Caviness v. Vale overrule the previous decisions of this court upholding the authority of the Legislature to exempt a municipality from liability for injury arising upon account of defective streets. We think those decisions do not have that effect. [5] The duty of keeping highways in repair is primarily a state function, and, when that duty is delegated to a municipality, the latter acts as a subordinate agency of the state, and in the discharge thereof exercises a governmental duty. Elliott on Roads and Streets (3d Ed.) vol. 1, § 496; East Portland v. Multnomah County, 6 Or. 62; Sheridan v. Salem, 14 Or. 328, 12 Pac. 925; Simon v. Northup, 27 Or. 487, 501, 40 Pac. 560, 30 L. R. A. 171; Humphry v. Portland, 79 Or. 430, 154 Pac. 897. "The paramount and primary control of the highways of a state, including the streets in the cities, is vested in the Legislature." East Portland v. Multnomah County, 6 Or. 62, 65. "It is universally conceded that municipal corporations are organized in the main for governmental purposes, and that the opening, improvement and repair of public streets in a town are purely matters of a public interest, and that the use and enjoyment of them belong to the public generally.' "Sheridan v. Salem, 14 Or. 328, 12 Pac. 925. "The law is too well settled to be questioned that the public highways of a city are not the private property of the municipality, but are for the use of the general public, and that, as the Legislature is the representative of the public at large, it has, in the absence of any constitutional restriction, paramount authority over such ways, and may grant the use or supervision and control thereof to some other governmental agency, so long as they are not diverted to some use substantially different from that for which they were originally in tended. # * A city occupies, as it were, a dual relation to the state the one governmental or political, and the other proprietary or private. In its governmental or political capacity it is nothing more than a mere governmental agent, subject to the absolute control of the Legislature, except as restricted by the Constitution, and such property and easements as it may have in public streets and ways is held by it in such capacity, and at the will of the Legislature." Simon v. Northup, 27 Or. 487, 501, 40 Pac. 560, 563 (30 L. R. A. 171). And in the case of Humphry v. Portland, 79 Or. 430, 154 Pac. 897, Mr. Chief Justice Moore, speaking for the court, said: "It is incumbent * upon a city to keep its improved streets in reasonable repair, and in discharging that obligation the municipal corporation necessarily exercises a govern An eminent text-writer says: "Municipal corporations are generally required to construct and keep in repair the public ways within their limits. These, however, are for the use, not of their own citizens, merely, but of all of the people of the state, and any duty they owe to keep them in repair is a duty to the state, and not to individuals. It is well settled, therefore, that at the common law a municipal corporation is not liable to an individual for neglect to keep a highway in repair, whereby he suffers an injury in using it." Cooley on Torts (3d Ed.) vol. 2, p. 1310, and cases cited in note 45. In discharging a state duty, the municipality stands in the place of the state, as its instrument or agent, and in the absence of statute authorizing the same, enjoys the immunity from private action that attaches to the state. Elliott on Roads and Streets (3d d.) $ 538. In recognition of the general rule that neither the state nor its subordinate agencies are liable to a private action without express statutory authority, the New England states, Arkansas, California, Michigan, Wisconsin, New Jersey, and South Carolina hold that, in the absence of a statute giving a right of action therefor, a municipality is not liable for a negligent failure to repair streets. McQuillin on Municipal Corporations, § 2721; Humphry v. Portland, 79 Or. 430, 445, 154 Pac. 897. The courts of virtually all of the other states, and also the Supreme Court of the United States, hold that when a municipality is given exclusive authority and control over streets within its limits, and has expressly imposed upon the corporation the duty of keeping the same in repair, and has granted it ample powers to provide the funds and the means necessary to make such repairs, the municipality is liable to a person sustaining an injury because of such nonrepair and subject to an action in favor of the person injured, and this is so in the absence of express statutory provision to that effect. Dillon on Municipal Corporations (5th Ed.) vol. 4. §§ 1689, 1708; McQuillin on Municipal Corporations, § 2719. The courts that adhere to the foregoing rule of implied liability do not agree upon the grounds upon which the doctrine is based, and eminent text-writers concede that the doctrine is exceptional, inasmuch as it is denied by the same courts in respect to counties, townships, and towns without char ters, and also denied in other matters wherein the municipal corporation proper is charged with duties relating to governmental affairs; but it is said the doctrine is fully vindicated by the decisions, and has found a sound and wholesome place in American jurisprudence. McQuillin on Municipal Corporations, § 2720; Dillon on Municipal Cor porations (5th Ed.) vol. 4, §§ 1714, 1715, and 1716. In every case where the duty to keep streets in repair is imposed upon the municipality, whether there is a liability resulting from negligence for its nonperformance and right of action therefor depend upon the provisions of the particular statute; so that when a municipality, by its charter, is vested with exclusive control and authority over its streets, and a clearly defined and absolute duty is imposed upon the municipality to improve and keep its streets in repair, accompanied by ample powers to provide the necessary means and funds therefor, the courts that adhere to the doctrine of implied liability discover in such provisions a clear legislative intention to subject the municipality to private action. In effect, such charter provisions are held necessarily to imply the consent of the state that the municipality may be sued by one injured upon account of the failure to discharge the state duty delegated by the charter. The courts of New York were among the first to give strong support to the doctrine of implied liability of municipal corporations for injuries arising from defective streets. In the case of MacMullen v. Middletown, 187 N. Y. 37, 79 N. E. 863, 11 L. R. A. (N. S.) 391, Mr. Justice Gray, speaking for the court, said: "It seems very clear to me that, in the distribution, through charters, to municipalities of governmental powers and of administrative duties within the described territory, there is no limitation upon the regulative power of the Legislature. For the breach of a duty, imposed for the public benefit, it may grant or deny a remedy to an individual who has sustained damage, and in granting a remedy impose conditions upon the right to enforce it. of the nature of these public corporations, and It seems to me that a thoughtful consideration of the principles which underlie their creation, leads irresistibly to the just conclusion that they can only be subjected to liabilities to the extent and in the manner that the charter permits, expressly or impliedly. * It is by force of the special or statutory charter that municipal corporations come under a liability for a breach or neglect of corporate duties imposed, which is enforceable by every individual interested in their performance. * council commissioners of highways for the city. They were charged with the duty of keeping the streets in proper condition and were empow * * * The charter of the defendant made the common When the charter that imposes the duty expressly exempts the municipality from liability for such injuries, the requisite consent of the state that the municipality may be sued is withheld, and these same courts uniformly declare that in such cases a private action against the corporation cannot be maintained. The cases hold with little, if any, dissent, that the Legislature may ex-ered to require the owners and occupants of empt a municipality from liability for defects in highways, or may also modify such liabilities or take them away. Schigley v. Waseca, 106 Minn. 94, 118 N. W. 259, 19 L. R. A. (N. S.) 689, 16 Ann. Cas. 169; MacMullen v. Middletown, 187 N. Y. 37, 79 N. E. 863, 11 L. R. A. (N. S.) 391; Elam v. Mt. Sterling, 132 Ky. 657, 117 S. W. 250, 20 L. R. A. (N. S.) 512, and cases found in note at page 526; Schaefer v. Fond du Lac, 99 Wis. 333, 74 N. W. 810, 41 L. R. A. 287; 13 R. C. L. 315; 12 Cor. Jur. 1289; 28 Cyc. 1265; Dillon on Municipal Corporations (5th Ed.) vol. 4, § 1709. In the case of Schigley v. Waseca, 106 Minn. 94, 118 N. W. 259, 19 L. R. A. (N. S.) 689, 16 Ann. Cas. 169, the court said: "An individual has no right of action against the state for its failure to construct and maintain the highways in proper condition, and as against the will of the state he has no greater right against an agency of the state to which it has delegated the performance of such duties. But the state may, if it chooses, authorize a right of action if the municipality neglects the proper performance of its duties; and, as we have seen, an intention to authorize such an action is inferred when a chartered municipality is given full power of control over the streets and highways within its limits. A right of action against the municipality is thus a matter of legislative favor, and may be granted absolutely or conditionally. When it has been held to exist by implication, it may be taken away by the Legislature, without violating any constitutional right of the individual." * * But buildings or lots to clean the snow and ice from Judge Dillon states the rule as follows: "The liability of the municipality for a defect is implied from the provisions of the statutes, such as provisions charging the municipality with the duty of keeping the streets in proper condition, and rests upon the proposition that the municipal corporation, under a grant from the sovereign power, has agreed expressly or impliedly to do certain things, and its neglect to do them exposes it to public prosecution or to a private action by any person injured thereby. But this doctrine or rule of responsibility does not prevent the Legislature, which creates the municipal corporation, from validly denying, in the exercise of its conceded general powers of control, the right to maintain a private action against it for an injury to the individual, or the power of the Legislature to restrict that right by any regulation which it |