18 N.J.L. 108 | N.J. | 1840
Lead Opinion
The case agreed upon by the parties, shows that the damage was sustained by reason of the team of the plaintiff running off the abutment of a public bridge, which was without side railings or parapets.
At the close of the first argument in this court, the further question was raised, whether the Board of Chosen Freeholders of a County are liable in a civil suit for any private injury sustained by neglect of such duty.
First, as to the duty of the Freeholders.
That they are bound by common law and by statute, to build and repair the bridge in question, is not denied.
We maintain, that a bridge “ is a building raised over water for the convenience of passage.”
That the abutment is one of the essential parts of a bridge. Am. Ency. by Low, Title, Bridge.
Without the abutment, there can be no convenience of passage.
By common law, the inhabitants of a county are bound to repair to the extent of three hundred feet of the highway at each end of the bridge. 4 Starkie’s Ev. 314; Rex v. W. Riding of Yorkshire, 7 East R. 588; 5 Taunt. R. 284; 4 Petersdorf, 700; 2 Term. R. 667; Com. Dig. 31 — 2, (Day’s Ed.) Title Chimin, B 2, note n; 3 Smith, 467; 2 Dow, 1.
The abutment being a part of the bridge, the person or body charged with the repair of one part, is equally charged with that of the other.
Second, As to the liability.
We contend, that for the neglect of this duty, the Freeholders may be proceeded against by presentment or indictment, for the public injury; and also by action, by an individual, for any extraordinary damage sustained by reason of such neglect. 3 Black. C. 219-20; Co. Lit. 56; 5 Rep. 73; Woolrych on Ways, 53.
But this particular damage must be direct and positive, and not consequential; as being delayed on a journey &c. Bul. N. P. 26.
This will not be denied as to an injury committed or duty omitted by an individual; but it will be contended, that no civil action lies against a county, for such particular damage.
If no action of this kind has been maintained in England, it is for the reason that the men dwelling in a shire or county, are not
A county in England, is a civil division of the realm, but not corporate; as such it can neither sue nor be sued; neither is there at common law, any person upon whom a fine imposed after presentment and conviction, can be levied. By statute 13 Geo. 3d, c. 78, it may be levied on individuals who, after paying it, may complain to the justices at their sessions, and procure an assessment sufficient to reimburse the money paid. 2 Chit. Cr. Law, 575.
The Statute of New Jersey, 13th Feb. 1798, Elm. Dig. 66, constitutes the Board of Chosen Freeholders of the respective counties, bodies politic and corporate; and authorizes them to purchase and hold real and personal estate; to sue and be sued ; to make and use a common seal, &c.
These boards represent their respective counties ; and the duties imposed upon the counties are to be discharged by and through them.
If then, the counties or the freeholders representing them, are charged with a duty, and are in a capacity to be sued, are they not responsible eiviliter, for damage sustained by an individual, by reason of the neglect of that duty ? The plain principles of common justice require it.
If not, then we have the anomaly of an injury sustained by reason of the neglect of a duty charged upon a body capable of being sued, and yet, no redress given for that injury.
J. S. Green, contra, contended that the only action which can be maintained against Chosen Freeholders is upon their contracts. 2 D. and E. 657, Russell et al. v. The men dwelling in the county of Devon; 3 Chitty’s Crim. Law, 1-32; Rev. L. 317 in Elm. Dig. 66; ib. 289, sec. 5; 1 Green, 314.
J. W. Miller in reply, cited Rev. L. 385; 2 D. and E. 673.
This matter came up from the court for the trial of small causes, by Certiorari to the Circuit Court of Sussex county; where a case was made and certified to this court, pursuant to the sixth section of the act entitled “ An act to facili
Upon the first argument had in this court, the same question substantially was presented as in the court below. But the counsel on behalf of the freeholders, when about closing his argument, suggested a doubt whether an action could be maintained at all against the board, in such a case. At the moment, it was supposed there was nothing in the objection, and it was not therefore urged. His Honor the Chief Justice having afterwards turned his attention to this point, satisfied himself that it was well taken; but the counsel of Strader desiring to be heard thereon, they were permitted to argue, and did argue this question at the last term of the Court.
Two questions are therefore nowr before us,
I. Upon whom rests the duty of attending to the repairs of that part of the bridge or way, off which the horse in question fell.
II. If that duty be on the Board of Chosen Freeholders, can they be hold answerable for damages, in a civil suit.
The last point being decided in the negative, might supersede the necessity of a direct opinion upon the first. But the point being fairly before us, and understanding that cases of a like character are awaiting our decision; it is thought right and proper that an opinion be expressed on both points involved in this controversy.
I. The Board of Chosen Freeholders is a corporation created by statute, and made the agent of the county, for executing all the legal purposes, objects, business and affairs of said county. liev. L. 318. The repair of bridges (reparatio pontium, anciently a part of the trinoda necessitas,) is one of the most important of those objects, not only at common law, but as recognized by our statutes. 1 Black, C. 376; 2 Wm. Black, 685;
The burthen of repairing that part of the bridge, technically called the abutment, was unquestionably upon the board of freeholders who acted upon the part of the county, (if upon anybody,) and not upon the overseers of the highways, who acted upon the part of the township. The abutment is as much a part of the bridge, as the pier, the arches or the timbers. It consists of that mass of stone or solid work at the end of the bridge, by which the extreme arches or timbers are sustained. But the word “ abutment,” is sometimes used to designate that which unites one end of a thing to another, see Webster’s Diet, and in that sense, it must have been used in the state of the case; for it was admitted upon the argument, that the horse fell from that part of the way which connects the abutment (proper) of the bridge, with the land ; ordinarily called, the filling up. This, the freeholders contend, was no part of the bridge, but a part of the road or causeway, and as such, should have been repaired by the overseers of the highway : and it is further certified that it has been customary in the county of Sussex, for the overseer of the highways to fill in at the ends of the bridges, the earth and stone which may be necessary to enable the traveller to reach the bridge from the common highway. This custom does not however appear to have been so general or long continued, as to be of much weight as an exposition of what the law is, and it is entitled to little consideration in any other respect.
The term, a bridge, conveys to my mind the idea of a passage way, by which travellers and others, are enabled to pass safely over streams or other obstructions. A structure of stone or wood which spans the width of a stream, but is wholly inaccessible at either end, (whatever it may be in architecture,) does not meet my ideas of what is meant in law and common parlance, by a bridge.
Sound policy, moreover, requires that we so consider the law, as to compel those persons who erect the structure itself, to make
But independent of all arguments drawn from public policy, such a construction as will compel those who make the bridge itself, to fill it up at its ends so far as is necessary to make it a convenient and safe passage way for the public, will, in my opinion, best conform to the course of legislation in this state, as well as io ancient principles of the common law.
There is nothing in our legislation from the earliest period to the present, which shows any design to alter or meddle with the principles of the common law. I have looked into the general course of legislation commencing under our colonial government, and corning down to the present. As early as 1683, Learning and 8. 459, provision is made for the appointment of overseers of the highways to amend all such roads as were laid out by commissioners &c. and from that time forward, the books literally teem with enactments about roads and bridges. Those which apply
But again, the legislation of this state, affords many instances, where companies and individuals are either bound or authorized to construct bridges, and in all such cases, the word, bridge, is used as tantamount to a complete passage way. It has never been doubted, that when companies have been required to construct bridges over canals and rail roads, that they were bound to fill up at the ends so as to make complete and safe passage ways for the public, or the owners of adjoining lands. So too, our statutes have authorized owners of land, to construct bridges on private or bye roads, over drains and ditches, Har. C. 413, and under this phraseology, it has never been doubted that the owner is bound to fill up at the ends of these bridges, so far as to make them safe and convenient passage ways for such persons as may be entitled to the use of such private way. So too, where the legislature has authorized the construction of toll bridges, (e. g. the Trenton bridge or that opposite Easton, over the Delaware,) and enacted penalties if the same be not kept in repair, the language used is merely “a good and complete bridge,” is to be erected; and yet it can never be doubted, and it never has been doubted, that they are bound not only to build and keep in repair, the body of the bridge, but the filling up at the ends so as to make them accessible and safe passage ways. In all such cases, where the word, bridge, has been used in our statutes, such has been its undoubted meaning.
But again, I have said that there is nothing in the course of our legislation, which changes the common law principle. It is important therefore that we know what that principle is.
Lord Ellenborough in Rex v. West Riding of Yorkshire Inhabitants, 7 East, 596, says that the object of the statute of 22 Henry 8, before referred to, was intended merely “ to define the limit which was perhaps uncertain at common law,” and therefore fixed upon three hundred feet as a proper extent of highway, to be repaired at the ends of bridges. 2 Row. 1 S. 0. in Error, In 5 Taunt. 299, Lord Eldon likewise considered this statute as merely defining the extent of the common law liability; and that a liability to repair at the ends of bridges, was independent of and prior to the .statute in question. The statute of 22 Henry 8, has never been re-enacted in this state, and the common law principle remains therefore in full force. If any custom to the contrary have crept in, it must be of modern origin — is subversive of ancient principles, and contrary to sound policy.
II. But there is another important point which remains to be considered. Can the Board of Chosen Freeholders be held responsible in such a case, for damages, in a civil suit ? I am satisfied that the view taken of this question by the Chief Justice, is correct: that no such action can be sustained. I have the more confidence in this conclusion, because I have reached it against my first impressions.
Although no such officer by name as a Chosen Freeholder, is known to the common law, or to the English statutes, yet there
But it was further contended, that our statute had changed the whole common law principle; that as it had erected a body of men into a corporation, to take the oversight of the business of the county, it had likewise given a special remedy in all eases against them. The board of chosen freeholders, is charged by statute, with the superintendence of county bridges — is incorporated, and made liable in express language, “to sue and be sued-,” and this, it is contended, gives plenary powers. But it is clearly demonstrable, I think, that there is nothing in this position.
The words “ to sue and bo sued,” give to this artificial person, no greater powers, and subjects it to no greater responsibilities, than as if they were natural persons charged with the same duties. A corporate body is merely a legal or artificial person substituted for a natural person. Ang. and Ames, 58. These words of the statute, are oí' no manner of importance; and although it is usual in the charters granted by this state, to corporations to insert this clause; yet it might be rejected as surplus-age, without interfering in the slightest degree with their corporate powers. The simple act of incorporation, gave to the board of chosen freeholders, as a necessary incident, the right to sue and be sued. It is one of the essential and ordinary incidents to every corporation. 2 Kent’s C. 277, 278; 1 Black. C. 475-6; Kyd. on C. 69; Ang. and Ames on C. 58. An undue importance therefore is attached to this power, as conferred by the statute. Though this corporation may like a natural person, sue and be sued, yet this suing and being sued, must always be in reference to matters and things within the legitimate scope and object of its creation. Ang. and Ames, 207.
The better and the modern opinion is, that a corporation may be held liable even for its torts, in a special action upon case, for a neglect of duties, in particular cases, and even in trespass for the authorized torts committed by its agents, Yarborough v. The Bank of England, 16 East, 6; Chestnut Hill &c. Turnpike Co. v. Rutler, 4 Serg. and R. 16; Grey v. The Portland Bank, 6 Mass. 364; but all these powers and liabilities are attached to corporations, by the policy of the law, which seeks, as far as possible, to make them answerable to the same extent as individuals. Be
From the earliest times both in England and in this country, the immediate duties of attending to the erection and repair of public bridges, have been placed by law upon some public officer chosen for that purpose: and yet not a solitary case is on record, of such public officer having been held liable for damages to individuals by reason of a neglect of his public duties. As before said, the uniform remedy has been by indictment or presentment, and even that, not against the officer himself.
Nor have the counsel cited a single case in this country, which even bears upon the question.
To make an overseer of the highways, indictable for neglect of his public duties, it was necessary that a special act of the legislature be passed, Rev. L. 622, see. 18, and by the 27th see. of the act concerning roads, 'he is subjected to a fine: .there is no common law liability. In reference to the board of chosen freeholders, I am not aware that there is now, or ever has been a statute subjecting them to indictment, though they are by special enactment subjected to a penalty of fifteen dollars if they refuse to accept the office, and if after acceptance they refuse, after due notice, to perform certain duties required by the act concerning roads, Rev. L. 57Ó, they are liable to forfeit sixteen dollars for the use of the county. The liability under these statutes, is the only civil liability resting upon them, for neglect of their duties
There is one other matter to which I desire to call attention. It is said that the liability of the board of freeholders, arises at least in some degree, from the statute; and yet it appears to me that it never could have been the intent of the statute to subject them to damages in such a case. There has been no charge so far as I am aware, of any wilful and fraudulent official neglect upon their part; and yet the statute does not make it an absolute duty, that the board repair all bridges, but leaves a discretion to the freeholders — they are “ to consider and decide upon the utility and necessity of erecting, rebuilding or repairing ” &c. Rev. L. 47, see. 1. Non constat, but that they held it unnecessary in the present case, and if they err in judgment, however well meaning, and the plaintiff’s counsel be correct in their argument, they are exposed to all the responsibilities which may arise therefrom. This gross injustice arises from the counsel’s substituting the responsibility of the freeholders, in place of the county, which latter is under all circumstances bound prima, facie to keep the public bridges in good repair, and liable to indictment if it do not.
Other arguments might be drawn from the special provisions of the statute, but they are unnecessary. I am satisfied, no civil action lies in such a case; and the judgment of the Common Pleas must be reversed.
Concurrence in Part
concurred on the last point (that no action lies in such a case) but dissented on the first point.
White, J. and Neyihs, J. concurred in all things with Justice Dayton.
I fully and in all things concur in the opinion just delivered by my brother Dayton. If an individual may sue a county for not keeping a bridge in repair, he may sue a township for not keeping a road in repair. If he may maintain such action for an injury done to his horse or carriage, by reason of the road or bridge being out of repair, ho may equally maintain an action for any other and for every degree of injury or inconvenience, he may suffer, by reason of a road or bridge not being in quite as good order as it ought to have been. If delayed on his journey, or unable to travel as expeditiously, or to carry as large burdens, as he might have done, had the road been in sufficient repair, he may have his action against the township for damages. This would open a new field for litigation and I think it would produce an abundant crop. It is true, our counties and townships are municipal corporations, and as such are suable at law: but the mere fact of being suable does not make them liable to an individual, for neglecting to perform a public duty. In JBro. Abr. Tit. Action sur le case, pi. 93, (cited in 2 D. and E. 669,) it is said, “ if an highway be out of repair, by which my horse is mired, no action lies,” and the reason given is, that the repair of the road, is a public duty, and the only remedy is by presentment. The principle of law, I take to be this : that where a corporate body, whether of a municipal or of a private character, owes a specific duty to an individual, an action will lie for a breach or neglect of that duty, whenever such broach or neglect has occasioned an injury to that individual: but if such corporation, owe a duty to the public, and neglect to perform it, although every individual comprising that public, is thereby injured, some more, and some less, yet they can have no private remedy, at the common law.
It is the duty for instance, of the board of freeholders, to erect and keep in repair, court houses and jails: a neglect to do so, may occasion great inconvenience, perhaps positive loss and injury to some individual whose business or duty requires his attendance at court: the building by being old and out of repair may give way, and break a man’s limbs, or occasion him an injury in some other way: but no one will pretend that in such case an action would lie by the person injured, against the county. So it is the duty of the freeholders, to build bridges where
Circuit Court instructed to reverse 'the judgment of Common Pleas, and affirm that of the Court of Small Causes.
Cited in Ward v. Newark and Pomp. T. Co., Spencer 325; State v. Freeholders of Essex, 3 Zab. 217; State v. M. & E. R. R. Co., 3 Zab. 365; Livermore v. Freeholders of Camden, 5 Dutch. 246; Cooley v. Freeholders of Essex, 3 Dutch. 415; Livermore v. Freeholders of Camden, 2 Vr. 508; Re-affirmed in Pray v. Jersey City, 3 Vr. 396-398; Cited in Proprietors of Bridges v. Hob. Land and Imp. Co., 2 Beas. 524.