As interpreted by our cases, this immunity of the State attaches also to school districts when they perform governmental (as opposed to merely proprietary) functions. Lovell v. School Dist. No. 13, 172 Or. 500, 507-508, 143 P.2d 236, 237 (1943), and cases cited therein; Antin v. Union High School Dist. No. 2, 130 Or. 461, 465-466, 280 P. 664, 665, 66 ALR 1271 (1929). Until this court decided Vendrell v. School District No. 26C et al, supra, no statute had been construed to be a "general law" waiving the immunity of school districts afforded by Article IV, section 24, of the Oregon Constitution.
"Provision may be made by general law, for bringing suit against the State, as to all liabilities originating after, or existing at the time of the adoption of this Constitution; but no special act authorizeing (sic) such suit to be brought, or making compensation to any person claiming damages against the State, shall ever be passed." Since a school district is a political subdivision of the state, Lovell v. School Dist. No. 13, 172 Or. 500, 507, 143 P.2d 236 (1943); Jacobberger v. School District No. 1, 122 Or. 124, 129, 256 P. 652 (1927); Spencer v. School District No. 1, 121 Or. 511, 518, 254 P. 357 (1927), the principle of immunity pronounced in the Constitution applies to it. See, James Yost v. Board of Higher Edu., 216 Or. 598, 601, 340 P.2d 577 (1959).
Thus, it is seen, that the common ordinary definition of nuisance includes the continued or repeated invasion or disturbance of a right, such as a continuing trespass. Surely, the Oregon Legislature employed the word in that sense when enacting ORS 449.820. Furthermore, all statutes which encroach on personal or property rights of an individual are to be construed strictly, and in the absence of express words or necessary implication, it will be presumed that such statute is not intended to interfere with or prejudice a private right or title. Moore v. Schermerhorn, supra, mandate recalled 210 Or. 23, 308 P.2d 180; Lovell v. School District No. 13, 172 Or. 500, 143 P.2d 236; Marsh v. McLaughlin, 210 Or. 84, 309 P.2d 188. We must assume that the Oregon Legislature was familiar with this rule of construction and that it never intended, by this legislation, to deprive individuals, such as plaintiffs, of their common law right to enjoin a flagrant violation of those rights nor to pursue their right to enjoin a continuing trespass in a proper Court.
This principle of immunity from tort liability has been almost universally extended to school districts, as quasi-municipal corporations, in the operation or maintenance of public schools. 78 C.J.S. Schools and School Districts ยง 320, pp. 1321-1324; 4 Dillon Municipal Corporations, (5th Ed.), Sec. 1658; Annotation, 160 A.L.R. 37; Antin v. Union High School District No. 2, 130 Or. 461, 280 P. 664; Lovell v. School District No. 13, Or., 143 P.2d 236; Rhoades v. School District No. 9, Mont., 142 P.2d 890, 160 A.L.R. 1. The principle has further been expressly applied to the non-liability of school districts for injury resulting from negligence in the operation of motor vehicles or school busses for the transportation of pupils.
A majority of other jurisdictions classify school districts as political or civil subdivisions of the state. Lovell v. School District No. 13, 172 Or. 500, 143 P.2d 236 (1943); Wichita Public Schools Employees Union, Local No. 513 v. Smith, 194 Kan. 2, 397 P.2d 357 (1964); Bagby v. School District No. 1, 186 Colo. 428, 528 P.2d 1299 (1974); Watts v. Double Oak Independent School District, 377 S.W.2d 779 (Tex.Civ.App. 1964); Cotton States Mutual Insurance Co. v. Keefe, 215 Ga. 830, 113 S.E.2d 774 (1960); Skelly v. Westminster School District of Orange County, 103 Cal. 652, 37 P. 643 (1894); 78 C.J.S. Schools and School Districts ยง 24 (1952). We are satisfied that the proper classification of school districts is that of political subdivisions of the state.
However, judicially-created law is not changed by legislative act unless the intent of the legislature to do so is clearly shown. Lovell v. School Dist. No. 13, 172 Or. 500, 143 P.2d 236 (1943). We do not construe this statute as clearly evidencing a legislative intent to change the law and to take away the immunity granted to public employees.
It is against this pleading that the correctness of the trial court's order quashing service of summons must be tested, for unless it appears from the face thereof that the court acquired jurisdiction over the defendants by proper service, then the order to quash service must be upheld. While ordinarily the means employed to assert the state's immunity from suit is by demurrer on the ground the complaint fails to state a cause of action, Antin v. Union High School Dist. No. 2, 130 Or. 461, 280 P. 664, 66 ALR 1271 (1929); Lovell v. School Dist. No. 13, 172 Or. 500, 143 P.2d 236 (1943); Wickman et al v. Housing Authority, 196 Or. 100, 247 P.2d 630 (1952); Petty v. Hibbs et al, 147 Or. 77, 31 P.2d 655 (1934); a motion to quash is also an appropriate method of raising the issue. James Yost v. Board of Higher Edu., 216 Or. 598, 340 P.2d 577 (1959).
The court further held that because the school district was acting in a governmental capacity, no liability was imposed on it by the statute. The decision in the Antin case was followed in Lovell v. School Dist. No. 13, 172 Or. 500, 143 P.2d 236, which again held that ORS 30.320 does not impose any liability on a school district while acting in the governmental capacity, and further held that a school district acts only in a governmental capacity. The most recent case involving the tort liability of a quasi-municipal corporation is Wickman et al. v. Housing Authority, 196 Or. 100, 247 P.2d 630. That was a damage action for the destruction of personal property by fire caused by the alleged negligence of the Housing Authority of Portland, a quasi-municipal corporation.
It is a quasi-municipal corporation separate and distinct from pure municipal corporations such as cities and towns. Lovell v. School District No. 13, Coos County, 172 Or. 500, 507, 143 P.2d 236; Antin v. Union High School District No. 2 of Clatsop County, 130 Or. 461, 464, 280 P. 664; School District No. 17 of Sherman County v. Powell, 203 Or. 168, 185, 279 P.2d 492; 47 Am Jur 305, Schools ยง 12. When it so acts, it acts wholly as a governmental agency when performing duties imposed by statute.
We must therefore look to some legislative enactment of state or city as the basis for liability, bearing in mind that statutes in derogation of the common law are to be strictly construed. Smith v. Meier Frank Inv. Co., 87 Or. 683, 171 P. 555; Lovell v. School District No. 13, Coos County, 172 Or. 500, 508, 143 P.2d 236. If by clear language the charter of a city imposes upon the abutting landowner the duty to repair a sidewalk, and also provides that such owner shall be liable for damages to third persons arising from his fault in failing to repair, then a person injured by a defective sidewalk may under conditions specified in the charter recover in an action for damages against the landowner.