American Print Works v. Lawrence

| N.J. | Oct 15, 1850

Lead Opinion

The Chief Justice.

The question presented by the demurrer in this cause is not without embarrassment, arising, perhaps, not so much from the intrinsic difficulty of the question itself, as from the decisions which have been already made affecting it.

It is the undoubted duty of this court to give effect to the decision made in this cause by the Court of Errors. It is a duty equally clear, not to come in conflict with the decisions of the courts of a sister state on a question arising upon the construction of their own laws and the effect and operation of their own constitution. The plea heretofore pleaded in this case, and which was adjudged by the Court of Errors to be defective in substance, or any other plea presenting substantially the same defence, cannot be sustained by this court. The replication demurred to is unquestionably defective. The only question is, whether the plea now pleaded does present substantially the. same defence with that already overruled by the Court of Errors, or a defence inconsistent with the principles adopted by that court.

If, by the decision of the Court of Errors, the statute of the state of Hew York, upon which the defendant relies in his plea, was adjudged null and void, as a violation of the constitution of that state, then unquestionably those pleas are bad, and must be overruled. But tin's clearly was not the view of the learned judge by whom the opinion of that court was pronounced. He held, in opposition to the opinion of the court below, and to what was understood to be the decisions of the courts of Hew York, that the statute contained a grant of power; that the property destroyed by authority of the statute was destroyed- for public use; and that if it authorized the destruction of any property without providing compensation, it authorized the taking of private property for public use without compensation, and would therefore be unconstitutional and void. But he expressly held that the statute did not authorize the destruction of 'goods, but only the destruction of buildings, for which compensation had been provided by the statute. The statute, therefore, was not regarded as unconstitutional. If a different opinion was entertained by any member of the court, if it was considered that the statute did authorize a destruction of goods without compensation, and consequently was-so far void, the objection could affect the statute only pro tanto. So far as it provided compensation for property taken, the statute was constitutional and- valid. ■

The defendanc, therefore, in the destruction of the buildings, (which in its‘consequences involved the destruction of the plaintiff’s goods) acted under the authority of a constitutional and" valid law. The real ground of complaint is, that he exceeded the authority conferred by the statute, and thereby became a trespasser; that he not only destroyed buildings, which he might lawfully do, but also the plaintiff’s goods,.which were in the building, and which the statute gave him no authority to destroy.

The plea under consideration in the Court of Errors, and which was adjudged defective, did. not aver that there was any necessity for the destruction of the goods. For all that appeared upon the plea, they might have been removed before the building was'destroyed. The utmost that could be assumed was, that such necessity might be inferred. “ The very effort and force (said the learned judge, in- delivering the opinion,) required to destroy personal property-, which could be saved from conflagration- by any possibility, would be sufficient to-remove it; and save ■ it from destruction.” This defect the pleader has now attempted to remedy, and has averred that, to prevent the spread of the conflagration and the destruction of a large portion of the city, it was necessary to destroy the buildings, without waiting to remove the plaintiff’s goods; and that the goods were thereby necessarily destroyed. He relics obviously, for his justification, not upon the common law rif/ht of necessity, hut upon a necessity created by the exigency of the statute, and growing out of the performance of his duty as a public officer.

The counsel of the plaintiff insists that the statute not only constitutes in itself no justification for the act of the defendant, but that it can in no wise contribute to his defence. That although ho acted in the discharge of his duty as a public officer, in good faith upon a sudden and alarming emergency, under the sanction of a constitutional and valid law, and in the execution of that law, all this is irrelevant and immaterial to his defence. He insists that the defendant is thrown back for his justification exclusively upon the common law doctrine of necessity ; that he must show, in justification, that it was absolutely necessary to destroy the plaintiff’s goods to prevent the spread of the conflagration, and that the progress of the flames could not by possibility have been otherwise arrested. By his argument he carries the doctrine much farther, and insists that even this necessity will not avail the defendant, unless he shows that the act was done to protect his own property, not the property of others alone, from destruction. This position is most clearly erroneous. There is no such limitation of the common law right of necessity. If there be, and such is announced as the rule of law, there would be an end to all efficient efforts to arrest the progress of any conflagration. No men but those whose property was immediately in peril, and that the most imminent, Would ineur the hazard of an effort to check the flames.

The position of the counsel of the defence, as disclosed by his pleading, is that the statute of the state of New York, under which the defendant acted, was a constitutional and valid law; that it conferred upon the defendant an unquestionable right to destroy the buildings to arrest the progress of the flames; that for this purpose these buildings were destroyed by the defendant in the discharge of his duty as a public officer; that in the discharge of that duty, the exigency arose which rendered fhe destruction of the plaintiff’s goods inevitable, in order to arrest the progress of the conflagration.

■ I incline to think the defendant is right in his construction of the law. It is certainly not without its difficulties. But it is the only view which will enable us at once to give effect to the judgment of the superior tribunal, and at the same time prevent our coming into direct conflict with the express and repeated adjudications of the courts of a sister state, upon the construction of their own statute. This result cannot be too strongly deprecated. Aside from all considerations of courtesy, its evil influences upon the administration of justice and the rights of parties litigant are apparent.

I am of opinion that the demurrer should be sustained, and the plaintiff’s replication overruled, with costs.

The same order must be made in the ease of Hale v. Lawrence, upon the like pleadings.

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Concurrence Opinion

Ogden, J.,

concurred with the Chief Justice.

Nevius, J. These causes involve the same questions, and may be considered and treated as one and the same, for the judgment of the court must be the same in each. They have, on a former occasion, been presented to us on demurrers to the defendants’ pleas, which demurrers were overruled here; but on writs of error the judgment of this court was reversed, and the demurrers sustained by the court of last resort. The record being remitted to this court, the defendant obtained liberty to file new pleas, to which the plaintiffs have filed their replications. To these replications there are demurrers and joinders. The counsel for the respective parties have presented their arguments in printed briefs, by which it appears that the defendant has been driven to defend the legal validity of his pleas on the principle, that on demurrer the judgment of the court must be against the party who files the first plea defective in substance.

In the examination of this case, (for I will speak of them as one) it will be proper to inquire what was the former plea filed in the cause, and what points or principles were settled by the Court of Errors on the demurrer to that plea. The settlement of these will aid us in the decision we are now called to make.

The action is in trespass, and charges that the defendant, on the 17th of December, 1835, at, &c., with force, &c., did blow up with gunpowder a large quantity of goods and merchandise of the plaintiff, of the value, &c., whereby, &e.

To this declaration the defendant pleaded, by way of justification of the act complained of, in substance as follows: that he was mayor of the city of New York at the time of the alleged trespass; that New York was a political corporation ; that, by a law of the state, he, as mayor, with the consent of two aldermen, was authorized (under certain circumstances mentioned in the plea) to pull down and destroy such buildings as he might deem hazardous and like to take fire, and convey the fire to other buildings ; that, in the lawful exercise of this authority, he caused and procured certain buildings to be blown up and destroyed j that the goods and merchandise of the plaintiff, said to be blown up and destroyed, were in said buildings at the time, and for that reason they were blown and destroyed by him, as it was lawful for him to do. I state only the substance of this plea; it will be found in form and in full in 1 Zab. R. 248.

The validity of this plea, as a legal justification of the trespass, came directly before the Court of Errors of this state, on a general demurrer, and that court adjudged the plea bad, and no lawful defence to the action. The reason and grounds upon which this judgment was based are to be found in the opinion expressed by that court at the time the same was rendered. But one opinion in support of that judgment was read, which will be found at length in the volume above cited, page 727, and in that opinion a majority of the court concurred. We are, therefore, to resort to that opinion to ascertain the principles and doctrines held and declared by that court, so far as the same are applicable to the questions now before us.

The principles clearly expressed by, or fairly deducible from that opinion are—

1st. That the law of New York, which the defendant pleaded in justification of the trespass charged, was a grant of eminent domain, authorizing him, as mayor, in certain cases, and at his discretion, with the consent of two aldermen, to pull down and destroy certain buildings, which, in cases of fire, he might deem hazardous and like to take fire, and extend the fire • to other buildings.

2d. That this law was not a mere regulation of a pre-existing natural right,'but a grant of a new power, to take or destroy private property for public use or public safety.

3d. That it was a constitutional law, so far as it extended to the destruction of buildings, providing compensation to the owners thereof.

4th. That it did not extend to, nor authorize the destruction of personal goods; or, if it could be so construed, it was so far unconstitutional and void, as it made no provision to compensate the owners of goods so destroyed.

5th. That to a charge for blowing up and destroying personal goods by a direct act of violence and force, the defendant could not plead this act in justification.

6th. That the lawful destruction of the building by the authority of this act was no justification for the destruction of the goods, when both were destroyed by one and the same forcible act of trespass.

7th. That the statute confers no authority, either in express terms or by necessary implication, to destroy goods, and therefore could not be pleaded in justification.

These are as many of the principles settled by the Court of Errors as it is necessary, for our present purpose, to refer to. The reasons assigned in support of them will be found in the report of the case, 1 Zab. R. 727.

We will now examine the present plea, and see wherein it differs from the former, and how far it is, or can be sustained by the judgment and opinion of the Court of Errors, as above mentioned.

The plea now under consideration alleges, that at the time of the supposed trespass, to wit, the 17th of December, 1835. the city of New York was a municipal corporation, and had certain officers, such as mayor, &c., invested with judicial and executive powers. It then sets forth the same statute of the state of New York as was set forth in the former plea, investing the mayor, &c., with a discretionary power to destroy buildings iu case of afire. It further alleges that, at the time of the trespass, New York was a populous city; that the defendant was mayor, and owner of a large number of buildings in it; that there was a fire raging in said city, threatening destruction to a large portion of it; that the defendant was present, and had reason to believe, aud did believe, that certain buildings were hazardous and likely to take fire, and convey the fire to other buildings, unless immediately blown up ; that, to stop the lire, and prevent the destruction of a large portion of the city, the immediate destruction of these buildings, without waiting to remove the goods therefrom, was absolutely necessary ; that two aldermen were also present at the fire, and they also deemed said buildings hazardous and like to take fire, and, with their consent, the defendant advised and procured said buildings to be blown up ; that the plaintiff’s goods were in said buildings, and could not have been removed and saved before said buildings would have taken fire, and communicated the flames, &o.; whereupon, &c.

This plea is substantially the same as the former plea ; its substance is not changed by the different language in which it is clothed, nor by the words “necessary,” “absolutely necessary;” “ that the goods could not be removed and saved,” &c. It is not a plea of justification by virtue of the natural right, arising from the common law right of inevitable and overwhelming necessity. It is a plea of justification by virtue of the statute ; and as that plea has already been overruled, I cannot but think it somewhat presumptuous in the defendant to put it again on the files of this court. I say it is, to all intents, a plea of justification under the statute, unless we reject the whole introductory part of it, as immaterial and mere surplusage. ITe alleges that he was mayor of the city. Suppose he was. As mayor, he has no more authority, without the aid of the statute, to blow up a building than any private citizen had. He alleges that lie deemed and believed certain buildings to be hazardous, and therefore blew them up. Suppose this true, but for the authority of the statute his own discretion could not be substituted in the place of proof of such necessity for the trespass, even if the suit had been brought for the destruction of the building. He alleges that the two aldermen entertained the same belief, and concurred in the act of blowing up the buildings. Of what avail is their belief or concurrence in the act, unless made available by the terms of the statute? It may be true that the defendant and his aldermen believed the buildings hazardous, and their immediate destruction necessary to stop the fire, and yet the fact may have been far different. Had he pleaded common law necessity as a defence, it would not have done for him_to allege that he deemed and believed it necessary to destroy the buildings or the goods ; the law would have required a direct averment that it was necessary. His belief in that case would be no answer to the charge. But it may be said, that there is a direct averment in this plea, “ that to stop the fire, the immediate destruction of the buildings, without waiting to remove the goods, was absolutely necessary.” This averment must be taken in connection with the former, and then it becomes qualified to an averment, that in the defendant’s belief the immediate destruction of the buildings, without waiting to remove the goods, was absolutely necessary; and that is no legal answer to the charge in this declaration. And the same remark will apply to the last averment in the plea, to wit, “ that the plaintiff’s goods were in said buildings, and could not have been removed and saved before said buildings would have taken fire and communicated the flames,” &c. As there is no averment of the absolute necessity for blowing up the buildings, but only the belief of the defendant of such necessity, the last averment touching the destruction of the goods must be taken in the same qualified sense.

I repeat, therefore, that this plea is the same in substance as the one already overruled, and. the Court of Errors have declared that such plea is bad. They have adjudged that, to a charge for blowing up and destroying goods by a direct act of violence, the defendant cannot plead as a justification the statute which authorized him, as a public officer, to blow up and destroy a building. That the lawful destruction of a building by the authority of the statute was no justification for destroying personal property in it, if both were destroyed by the same act of violence.

For these reasons, I think this plea no answer to the declaration and no defence to the action, and is in direct contravention of the decision of the Court of Errors, and should have been stricken out on motion, if such motion had been made.

But if we arc at liberty to consider the whole introductory part of the plea as immaterial, and are at liberty to reject it as surplusage, then its tr'ue meaning is, “ that the defendant lawfully destroyed a building (whether by the authority of the statute or the law of necessity matters not) which contained the plaintiff’s goods, and that there was not time to remove the goods, and that therefore they were destroyed. The plaintiff does not complain of a consequential loss of his goods arising from the destruction of a building, but he charges the defendant with a direct act of trespass committed upon the goods themselves. This allegation ought to have been admitted or denied by the plea. The defendant has done neither in express terms, but he answers, that in blowing up a building, which he had a lawful right to blow up, the goods being in such building, and not removable in time to stop a fire, were necessarily blown up. This is no answer to the charge. If he blew up the goods, which he does not deny, and meant to justify such destruction on the ground of necessity, he should have so distinctly averred. Suppose an action of trespass had been brought against him for blowing up the building, it would have been a lame and insufficient answer for him to say, that in the exercise of a lawful right to blow up and destroy the goods it contained, to stop a fire or a pestilence, he necessarily and unavoidably destroyed the building: and yet such plea would be equally defensible with this. But if is unnecessary to dwell longer on this part of this case. I consider the plea bad in substance, as well upon the rules of practice as upon the decision of the Court of Errors, and that judgment on this demurrer ought to be rendered for the plaintiff.

But if the plea could be treated and considered as a plea of justification under the common law right of inevitable necessity, and I am free to admit that such a necessity might exist for the destruction not only of buildings but of personal goods, then I am of opinion that the replication is a good answer to the plea. In that case we must strip the plea of all that part which is set forth as inducement to or excuse for the act complained of, and reject it as mere surplusage. Then to the charge of trespass in blowing up the goods, the plea will be, “ that the goods were in a certain building, the immediate destruction of which was necessary to stop a conflagration in a populous city; that the goods would not be removed in time to effect that object; that the defendant, compelled by such necessity, destroyed the building, and that the goods were consequently and unavoidedly destroyed.

If the facts so averred constitute a legal defence to the charge of trespass, and the plaintiff means to controvert them, what reply ought he to make? I apprehend the very one he has made, and no other. In his replication he alleges “ that the immediate destruction of the goods was not absolutely necessary to stop the conflagration, nor would it have been impossible to arrest the fire without such immediate destruction of' the goods.” Had he replied that the immediate destruction of the building was-not necessary to arrest the fire, it would have been a departure in pleading, and tendered an immaterial issue, for the defendant is not charged with a trespass in blowing up the building. Nor would it have been an answer to the plea, for that does not aver “ that it was necessary to blow up the buildings,” but only that the defendant deemed and believed it necessary, which the plaintiff could not deny.

Again, the destruction of the house may have been lawful, ■and the destruction of the goods unlawful and a trespass. The real point.in the plea is, that there was- no time to remove the goods, or that the goods could not be removed in time to stop the fire' and were therefore blown up. To this point the replication gives a direct denial, and. puts in issue the very fact upon whieh the defendant relies in,justification of the trespass, and which the plaintiff- means, and has a right to controvert, and very properly concludes to the country.

It is, however, argued against this replication, that it avers facts, the contrary of which is not affirmed in the plea, such as “ that the plaintiff had no estate in the building blown up,” and “ that the immediate destruction of the goods was not absolutely necessary.”

As to the first of these averments, it is entirely immaterial, and therefore not a cause of demurrer. Steph. on Pleadings 4G7. And the plaintiff may well be excused for alleging it, when we look at the anomalous character of the plea, reciting so much of a public statute in justification of the trespass as may avail him, and omitting that part which provides compensation to all persons having an estate or interest in the building destroyed.

In regard to the second, I remark, if the plea did not substantially aver the necessity of destroying the goods to arrest a conflagration, then it is no answer to the declaration. If it did contain substantially such averment, then it is fairly met by the replication, and in either case the judgment on this demurrer should be for the plaintiff.

Another cause of demurrer assigned to this replication is, that it is multifarious and double in meaning.

1st. Because it avers that the plaintiff had no interest in the building destroyed :” (the averment is, that he had no estate or interest in the building.)

“ 2d. Because it avers that the immediate destruction of the goods was not necessary.”

“ 3d. That it would not have been impossible without such destruction to have arrested the fire.”

The answer to this is plain. The first of these averments is as. immaterial as the averment in the plea, that the defendant owned many buildings in the city of New York. The third averment is only a corollary to the second, and they are to be taken together, making in fact but one material allegation. There is no multifariousness here.

Another cause of demurrer assigned is, that the replication is argumentative in this, “ that instead of denying the necessity of destroying the building, it denies the necessity of destroying the goods.” This objection, I think, has been already sufficiently answered; but I may add here that it illy becomes the defendant to make it, after signing his own plea, where, to a charge for destroying goods, he pleads that he was justified in destroying a building in which the goods were. If the replication is liable to this objection, the plea is equally so.

There is no other cause of demurrer assigned that calls for further notice, and what I have said in regard to the first special plea, and the replication thereto, will apply to the second snecial plea and its replication.

I think the judgment should be for the plaintiff.

Judgment for the defendant on the demurrer.