36 N.H. 284 | N.H. | 1858
The following may be taken for a general statement of the case set up by the plaintiff. The town of Meredith built a town-house, to be used for holding town-meetings and other public purposes. The house, by the default and negligence of those who built it in behalf of the town, was so improperly constructed that the flooring gave way at the annual town-meeting in 1855, and the plaintiff, an inhabitant and legal voter, in attendance on the meeting, received a serious bodily injury. The accident and injury were caused by the defects and insufficiency of the building.
Assuming that it was the duty of the town to provide a safe and suitable place for holding town-meetings, the question will remain, whether a citizen of the town, who suffers a private injury in the exercise of his public rights from neglect of the town to perform this public duty, can maintain an action against the town to recover damages for the injury ?
Towns in this State are declared by statute to be corporations,
We have no statute which gives an action against a town for an injury like that complained of in this suit; but the general position taken for the plaintiff is this: The town is a corporation; it was a public duty of the town to provide a safe and proper place for holding the annual town meetings; the plaintiff has suffered a private injury from neglect of the town to perform this public duty, and the law holds a corporation liable to an individual for any private damage that he may suffer from neglect of the corporation to perform a public duty.
In considering the authorities which have been relied on to sustain the general position of the plaintiff, it may be well to distinguish the different classes of corporations that have public duties to perform, and advert to the grounds upon which, in different cases, the legal liability for neglect to perform the public duty has been held to rest.
Private corporations, by the conditions, express or implied, upon which- they hold their corporate powers, are frequently charged with the performance of public duties; and where a private corporation, like a turnpike, a canal, or a railroad, accepts a,grant of corporate powers upon condition of performing a public duty, and an individual suffers a private damage from neglect of the corporation to perform the public duty, it is well settled, upon the authority of numerons cases, that he may maintain an action against the delinquent corporation, to recover his damages. A large proportion of the cases cited for the plaintiff are of this character.
So in England, where a public duty is imposed on a municipal corporation as a condition upon which the corporate franchises or corporate property have been granted; or where the corpo
It is also to be observed that municipal corporations in England are broadly distinguished in many important respects from towns in this and the other New-England States. There is no uniformity in the powers and duties of English municipal corpo
Grants are sometimes made to particular towns or cities, of special powers, not belonging to them under the general law; and there is a class of cases, in which towns and cities have been held liable to civil actions for damages caused by neglect to perform public duties growing out of the grant of such special powers : as the power to bring water by an aqueduct for public use by those who pay a compensation for it; to light the place with gas, on the same, terms, or to make and maintain sewers at the expense of adjoining proprietors. Thus in The Mayor, &c., of New-York in Error v. Furze, 3 Hill 612, the city was empowered by a special act to lay down and maintain sewers, and charge the expense upon owners and occupants of houses and lots intended to be benefitted ; and it was held that an individual might maintain an action against the city to recover
The decision in Lloyd v. The Mayor, &c., of New-York, 1 Selden 374, is put upon this distinction, between a duty arising from the grant of a special power, and a duty implied from the exercise of political rights under the general law. “ The corporation of the city of New-York,” it is said in that case, “possess two kinds of powers, one governmental and public, and, to the extent they are held and exercised, is clothed with sovereignty ; the other, private, and, to the extent they are held and exercised, is a legal individual. The former are given and used for public purposes; the latter, for private purposes; while in the exercise of the former the corporation is a municipal government, and while in the exercise of the latter, a legal individual.” “ The rules of law are clear and explicit which establish the rights, immunities and liabilities of the appellants, when in the exercise of each class of powers.”
In some of the cases in which cities have been held liable to a civil action for neglect to perform public duties, growing out of grants conferring special powers and privileges, stress appears to have been laid on the circumstance that the city derived a direct pecuniary profit from the grant, in the shape of a toll or rent. But in other cases, where no benefit of that kind was derived from the grant, cities have been held liable, and the decision has been put on the ground that the grant of special powers, though not the source of any direct pecuniary profit, was yet in the nature of a special privilege or immunity, granted for the particular local advantage of the city, and placed the corporation on the same footing of liability as if the benefit were in the shape of a rent, or toll, or other pecuniary income; that the
In Meats v. The Commissioners of Wilmington, 9 Iredell 73, the corporation were sued for undermining a brick wall in grading a street, under authority conferred on the town by sundry special acts of the Legislature, and were held liable to the action. In that case the court say, “ when the sovereign grants power to a municipal corporation to grade the. streets, the grant is made for the public benefit, and is accepted because of the benefit which the corporation expects to receive, not by making money directly, but by making it more convenient for individuals composing the corporation or town to pass and repass in the transaction of business, and to benefit them by holding out greater inducements for others to frequent the town. The only distinction is that in one case the money is received directly, in the other indirectly. But in both cases the individuals composing the stockholders,” (that is, in the private corporation,) “ and the citizens of the town, derive special benefit from the work.” Cunliffe v. The Mayor, &c., of Albany, 2 Barb. Sup. Ct. 190, would seem to fall into the same class of cases. There the city claimed authority under a special act to improve the navigation of Albany Basin, and to maintain a bridge ; and having altered’ the construction of the bridge under authority of the act, were decided to be liable to the plaintiff for an injury caused by the bridge while he was on it. So of Rochester White Lead Co. v. The City of Rochester, 3 Comstock 463, and Clark v. Washington, 12 Wheaton 40.
In such cases the special powers thus granted are not held by the particular town or city under the general law, and as one of the political divisions of the country. The public duty grows out of the special grant of power ; and, though held and exercised by a town or city, the nature of the power granted is the same as if a like power had been conferred on a private corporation created to answer the same public object, and the cases above referred to hold the town or city liable to a civil action for
This distinction between corporations that voluntarily accept the grant of special powers from the government, and the inhabitants of any district who are by statute invested with particular powers without their consent, is stated and relied on by Parsons, C. J., in the early case of Riddle v. Locks and Canals, 7 Mass. 187, and is recognized in Sears v. The Turnpike, 7 Ct. 9.
The case of Pittsburg City in Error v. Grier, 22 Penn. 54, cited for the plaintiff, stands upon grounds which clearly distinguish it from the present. The city, in that case, was in possession of a public wharf, exercising an exclusive supervision over it, and receiving tolls for its use ; and the plaintiff sustained a special injury from the neglect of the city to keep the wharf in order. Black, C. J., delivering the opinion of the court, says, “ The rule undoubtedly is, that those who have a public work under their control are bound to repair it, and the force of this obligation is still further increased when it yields its possessors a revenue. The cases above cited show that this principle applies to public ports in possession of a city, as well as canals, bridges and other highways in the hands of individuals and private corporations.” “ The injury is a violation of the duty which arises out of the control which the city has over the port, and her receipt of tolls from the vessels which come into it.”
In several of the cases cited for the plaintiff, cities and towns have been held liable for private injuries done by them in the course of executing works which they were by law authorized to perform. ■ In Scott v. The Mayor and Aldermen of Manchester, 37 Law & Eq. 495, by the carelessness of workmen whom the defendants employed in laying gas-pipes, a piece of metal was thrown into the plaintiff’s eye, and the city was held to be liable. So in Delmonico v. The Mayor, &c., of New-York, 1 Sanford 222, an action was maintained for damage suffered by the plaintiff from the negligence of the defendants in the process of constructing a sewer. The remarks of the court in Anthony v. Adams, 1 Met. 285, are to the point, that an action may be maintained against a town in such a case. The plaintiff, in cases of this character, does not recover on the ground that he has been denied any public right which the corporation owed to him as a citizen of the town, or because he has suffered an injury in the exercise of a public right, from neglect of the town to perform a public duty. The corporation being authorized by law to execute th.e work, if, in their manner of doing it, they cause.a private injury, they are answerable in the same way and on the same principle as an individual who injures another by the wrongful manner in which he performs an act lawful in itself. It has been sometimes made a question, whether in the particular case the corporation were liable as principals for the conduct of those who performed the work on their account; but where a work is once conceded to be done by the corporation, it would seem to be clear, on authority and general principles, that a corporation, public or private, must be held liable like an individual for injuries caused by negligence in the process of executing the work.
Then, again, towns and other municipal corporations, including counties in this State, have power, for certain purposes, to hold
The case of the plaintiff can not be classed with any of those to which we have adverted. The question here is, whether a town is liable to the action of a citizen of the town who has suffered a special damage from neglect of the town to provide a safe place for holding the annual town-meeting. The public duty relied on is not enjoined by express provision of any statute. If such a duty exists, it is implied from the general character and design of such quasi corporations, and must depend on the general law applicable to all towns. Here is no contract, express or implied, between the State and the individual town, and no grant of any special power or privilege which can be supposed to have been voluntarily accepted by the town upon condition of performing the public duty. Towns are involuntary territorial and political divisions of the State, like counties, established for purposes of government and municipal regulation. It is chiefly through this organization of towns that the people exercise the sovereign power of government; and the plaintiff’s
In Riddle v. The Locks and Canals, 7 Mass. 169, 187, the case of Russell v. The Mm of Devon, 2 T. R. 667, is cited as an authority applicable to towns and counties in Massachusetts; and in Mower v. Leicester, 9 Mass. 250, it was held that towns are not liable to a civil action for neglect to perform public duties imposed on them, unless the action were given by some statute, and Russell v. The Men of Devon was again recognized as applicable to the case of towns. The Merchants’ Bank v. Cook, 4 Pick. 114; Tisdale v. Norton, 8 Met. 292 ; Holman v. Townsend, 13 Met. 300, and Brady v. Lowell, 3 Cushing 124, are to the same point.
In Adams v. Wiscasset Bank, 1 Greenl. 361, Mellen, C. J., cites from Riddle v. The Locks and Canals the remarks of C. J. Parsons on this subject, and adds, “ No private action, unless given by statute, lies against quasi corporations for breach of a
We understand the same rule to prevail in Vermont. In Baxter v. The Winooski Turnpike, 22 Vt. 123, Bennet, J., in delivering the opinion of the court, says, “ I take it to be well settled that if the statute had not given the action, no individual who had sustained a special damage through neglect of the town to repair their roads, could maintain a suit. It may be said that where an individual sustains an injury by the neglect or default of another, the law gives a remedy; but that principle does not apply where the public are concerned.” And the same general doctrine is affirmed in Hyde v. Jamaica, 27 Vt. 443.
In Connecticut it is held that no action will lie for injuries caused by defects in a highway, unless given by statute. Chedsey v. Canton, 17 Conn. 475.
In Farnum v. Concord, 2 N. H. 392, Richardson, C. J., says, “ No action lies at common law against towns for damages sustained through defects in highways.” He cites, as authorities for his position, Mower v. Leicester, and Russell v. The Men qf Devon, and, after quoting the provision of our statute which gives an action for special damages caused by insufficiency of highways, he adds, “ And the question is, whether any damage has happened to the plaintiff in this case by means of the insufficiency or want of repairs of .the highway in question, within the intent and meaning of this statute.” The right to recover against the town is thus placed entirely on the statute.
It is said in argument that the authority of these New-England cases is much weakened by the circumstance that they may all be referred for their origin to Russell v. The Men of Devon, and that the reasons assigned for the decision in that case are not applicable to our towns. There is certainly no such exact resemblance between counties in England and our towns, as will make all the reasons upon which the court in that case placed their decision applicable to towns in this State. Counties
A manuscript case of Wheeler v. Troy has been shown to us, in which it is understood to have been decided, in December, 1848, at the term of the Superior Court for Cheshire county, that towns in this State are liable to an action for damages caused by defect of highways, independent of the statute which gives the action. Taking that case to be correctly reported and to have been correctly decided, it is far from coming up to the present. The duty to repair highways is especially enjoined upon towns by statute, for the common benefit of all who have occasion to use them. ■ It is not a public duty, supposed to be devolved upon towns to enable their own citizens to exercise and enjoy their public and political rights, like that on which the plaintiff relies in this case.
A distinction has been suggested in argument, between an omission or total neglect to perform a public duty, and negligence in the manner of performing it. It has been contended that though the town might not be liable for damages caused by omission to perform the duty, they would be for an injury caused by the negligent and improper manner of performing it. There are doubtless cases where a party who is under no legal obligation to perform an act or service, is yet liable for damages caused by his negligence, if he voluntarily enters upon the performance of it. But our discussion of this case has gone on the assumption that it was the duty of the town to provide a safe and suitable place for holding the town-meeting; and we are unable to perceive any distinction in principle between a claim to recover damages for a total neglect to perform an admitted public duty, and for neglect to perform it properly and with due care, when the injury complained of happens to the plaintiff in the exercise of his public rights as a citizen of the town. The duty is not performed unless it is properly performed. In both cases the town has neglected to perform, or failed to perform, the public duty which they owed to the plaintiff and other citizens.
We see no reason to question the authority of towns to build and own town-houses, to be used for holding town-meetings and
We regard the present case as one of new impression. We have heard of no earlier attempt in this State to maintain an action against a town, for a private injury suffered by a citizen of the town from neglect of the town to provide him with safe and suitable means of exercising his public rights, and we are not informed of any case in which such an action has been maintained in any other State. We believe it to have been the general understanding of the profession in this State, that an action will not lie against a town for neglect to perform a mere public duty, unless the action is given by statute. The authorities cited in support of the plaintiff’s action are very distinguishable, as we think, from the present case, and there is a great weight of authority on the other side.
Our conclusion is, that this action, on the case stated to us, cannot be maintained.