Hewison v. City of New Haven

37 Conn. 475 | Conn. | 1871

Butler, C. J.

These parties have been once before us in respect to the same transaction. 34 Conn. R., 140. In the former case the attempt was made to maintain an action for the injury, grounded on a breach of an imposed statutory duty to keep the highway in question free from defects. But we were satisfied that the suspended flag and weight which produced the injury did not constitute a defect in the highway within the meaning of the statute. The cause of action for the same injury alleged here is a breach of contract duty, which, it is alleged, grew out of the. acceptance by the city of a charter from the state, by force of which it agreed to keep the highways from being rendered unsafe by nuisances, and that the suspension of the flag and weight over the way, from which the injury occurred, constituted a nuisance.

The declaration alleges in the first count, as the foundation of the duty, that authority was given the city, in the charter and amendments, to make by-laws relative to the public squares, streets, highways and walks of the city, and nuisances therein; that they did make a by-law, making an incumbrance or obstruction in, over or upon any highway, street or sidewalk, whereby traveling should be obstructed or rendered inconvenient., a nuisance, and thereby assumed the duty of preventing and removing such nuisances :

And in the second count, in substance, that the city assumed exclusive control of the streets under the provisions of their charter, and agreed that they would exercise such control with proper care, and keep the streets free from nuisances that might obstruct, hinder or endanger travelers thez-eon; azid

In the third count, that it becazne, on the facts recited in the other counts, the duty of the city to have and exercisecozitrol of the streets and prevent the existezzce of ziuisances:

Alleging as to all, a negligent oznission to perform the duty assumed or agreed to be perfozuned.

It will be perceived that the secozid count is the only one' which chai’ges that they contracted to prevent nuisances in, on, or over the streets &c., which would endanger travelers.

It is very doubtful whether that count alleges a contract to pz’event such a nuisance as the flag and weight are claimed to be, but that question is azi imznaterial one, and we do not caz’e to discuss it. If the effect of the charter and by-laws were such as to constitute the flag and weight a nuisance to a highway, it was a public nuisance, and the duty to remove it, whether imposed or assumed, was a public, govez’nmental duty. The protection of the citizen from public nuisances, whether endangering health or .public travel, has ever been considered in the law, and in the legislation of this state, such a duty.

This brings us to the real question in the case, and that is, whether the law is,- or ought to be so in this state that the acceptance of a special charter by á city or borough, authorizing the corporation to perform a strictly governmental duty, cz’eates a contract between the corporation and the state that it shall be peifomred, and makes the city or borough liable for an omission to perform, or a negligent performance of it, constituting an exception to the general doctrine that for the non-performance or negligent performance of a public, governmental duty, such a corporation is not liable.

This action is evidently brought under an impression derived from the case of Jones v. City of New Haven, (34 Conn., 1,) that the court were prepared to hold the affirmative of the question, but it is a mistaken impression. If that case had turned on the question presented here the decision would have been the other way. It in fact turned on a very different question, and stands on other and impregnable ground.

In that case the duty which the city had contracted with the state to perform, was a strictly private duty. The city asked of the General Assembly, and received, power to control the trees of the city, standing on its streets and squares, and assumed the entire and exclusive control of them. The owners of trees standing on the highway are liable at common law for injuries occurring in consequence of their neglect to trim them and keep them safe, and the city assuming exclusive control and forbidding the owners to cut, and therefore to trim them, assumed the duty and liability which would otherwise have rested on the owners. It was a private duty so far' as the city owned the trees, and equally a private duty if they assumed it 'in exclusion of the owners. And being a private duty and unperformed they were undoubtedly liable for the injury which resulted from their neglect. In respect to the law applicable to the case, if the construction of the charter and by-laws by the majority of the court had been deemed correct by all, there would have been no division in the court. The case did not call for the application of the doctrine of contract to a public, governmental duty, nor is there any intentional intimation in it that we should ever override the doctrine of public immunity and apply it. Cases where the courts had gone to that length were cited in stating the general current of authority on the subject, but without adopting or intending to adopt that principle. The claim of the plaintiff is not supported by that or any other decision in this state.

Since Jones v. City of New Haven was decided the subject has been thoroughly discussed in other courts of this country, and in this court, and very ably by Judge Redfield in the Law Register, and if we had ever been disposed to carry the doctrine of implied contract between the state and city .so far as to embrace a governmental duty, we should not now be so inclined. The distinction between the duties is broad and clear, and it is essential to justice that it should be preserved and regarded.

The Superior Court must be advised that the declaration is insufficient.

In this opinion the other judges concurred.