Reock v. Mayor of Newark
33 N.J.L. 129
N.J.
1868
Check Treatment
Beasley, Chief Justice.

Thе first count of this declaration is founded on the idea that whenever the grade of a public street is altered in the city of Newаrk, to the detri*131meat of a property owner, the corporation becomes immediately responsible to pay, in money, to the measure of such detriment. But this view, I think, is clearly erroneous. Indeed, the impolicy of such a rule is so glaringly manifest, that it would require the utmost clearness and precision of terms in the legislative act regulating the subject, to induce the belief that it was the design to establish such a scheme. The operation of the system contended for would be this: that whenever the grade of a street should be changed, all property owners conceiving themselves injured, would be at liberty to bring their actions forthwith against the municipality, and recover such sums as in that mode might be awarded. The result of such suits would be that the damages occasioned by changing thе grade of the public streets would be cast as a burthen on the whole city; whereas, by the act before referred to, ‍‌‌​​​​​‌​‌‌‌‌​​‌​‌‌​‌‌‌​​‌​​​‌‌‌​​‌‌​‌‌​​​​​​​‌​‍such burthen is imposed on the lands in the locality benefited by the improvement. Independently of any statutory assistance, it is obvious that, aсcording to the legal rule settled by the decisions in this state, the plaintiff could not support an action for the damages in questiоn. His right of suit is altogether the creature of the act, and we are, consequently, to look at the legislative intention for the nаture and extent of such right. It is true, as was remarked on the argument, that the supplement to the charter of this city, directs the commоn council to make compensation to the owners of property for the actual damages caused by the alteration of the grade of a street; but the same clause provides the mode in which the amount of such damages is to be ascertained, that is, an estimation and assessment are to be made “ in the manner provided by law in oases of laying out and opеning, &c., any street, Ac., within said city. The model here referred to is found in the charter of Newark. Pamph. Laws, 1857, p. 164. And the provision is that commissioners are to be appointed by the common council, who are to make, observing certain specified ‍‌‌​​​​​‌​‌‌‌‌​​‌​‌‌​‌‌‌​​‌​​​‌‌‌​​‌‌​‌‌​​​​​​​‌​‍formalities, an estimаte and assessment of the damages for taking and appropriating the lauds for the street, and that such damages *132are to bе assessed on the lands benefited. The privilege of a trial by jury is also given, by way of appeal, to any land owner who may conceive himself aggrieved by the action of the commissioners. This is the procedure appointed in case of taking lands fоr opening or widening a street; and the same mode is provided when a grade is to be changed. Here is a system, then, manifestly incоmpatible with any rule which will sustain the action in this case. The statutory direction is clear, that these damages are to be assеssed on the lands benefited ; but if this cause should go to trial, how could the amount of the verdict be levied in this special manner? It appears clear that if the plaintiff should be permitted to proceed, his success would take from this particular locality the cost of this improvement, and put it in the form of a general tax on the citizens at large. This would be conspicuously violativе of the intention of the legislature, and would be unjust in itself. There are several other contrarieties between the method prescribed by the act and the course of proceeding adopted by the plaintiff in this suit, which are apparent and are important, but which it is unnecessary to mention. My view of the general effect of this act is, that while it gives damages to the party injured by the alteration of a street grade, it directs the assessment of those damages to be made in a particular mode, and their рayment out of a particular fund, and that, as a result, the plaintiff cannot sue at large, but must pursue his remedy in the appointed сourse.

Nor have I found any better legal foundation to ‍‌‌​​​​​‌​‌‌‌‌​​‌​‌‌​‌‌‌​​‌​​​‌‌‌​​‌‌​‌‌​​​​​​​‌​‍the second count of this declaration. Its gravamen is, that the common counсil did not provide, in the mode prescribed in the act above referred to, for the payment of the damages sustained. But I find neither precedent nor principle for such a suit. The neglect complained of is a mere nonfeasance by the city council in a branch of city government. Assuming the truth of the facts alleged, this official body owed it as a duty to the citizens at large, to hаve these damages assessed upon the property benefited, and the non-performance of that public *133duty, as has bеen repeatedly decided, will not lay the ground for a suit by a person, even though he may have suffered peculiar injury. The application of the opposite doctrine to that class of cases to which the present belongs, would be attendеd with very ‍‌‌​​​​​‌​‌‌‌‌​​‌​‌‌​‌‌‌​​‌​​​‌‌‌​​‌‌​‌‌​​​​​​​‌​‍great mischiefs. Suppose a common council should fail in its obligation to order a tax in the mode or at the time ordаined — could persons injured by such neglect bring suits against the corporation founded on that cause? If we admit such a principle, the litigious vexation would be endless — for every official non-feasance would raise a liability to a swarm of suits. In the case of Fowle v. Common Council of Alexandria, 3 Pet. 398, the facts were, that the common council had granted a license to an auctioneer, without taking from him a bond, as required by law, and from which negligence the plaintiff suffered a loss; but the court decided, that from such circumstances no suable liability arose. The ground of judgment was, that there was no precedent for such a suit, and that the court would not make one. In the present case, these defendants are a public corporation, possessed of legislative powers, and are a part of the established ‍‌‌​​​​​‌​‌‌‌‌​​‌​‌‌​‌‌‌​​‌​​​‌‌‌​​‌‌​‌‌​​​​​​​‌​‍government of the state, and, in my opinion, it would be not only highly impolitic, but also inconsistent with well founded general principles, to hold that because one branch of such corporation has failed in this particular case to exercise onе of its functions, given to it for the public good, it is competent for all persons, being one or a multitude, who may conceive themselves injured by such inaction, to bring their actions against it. As to both counts, I think the demurrer should be sustained.

It was suggested, on the argument, that unless this suit would lie, the plaintiff would be without remedy. But this conclusion does not seem warranted, as the remedy by mandamus seems to be clear. The King v. Commissioners of Sewers, 2 Ld. Raym. 1479.

Demurrer sustained.

Cited in Morrison v. Bernards, 7 Vr. 221; Paret v. Bayonne, 11 Vr. 562.