47 A. 82 | N.H. | 1899
Lead Opinion
The plaintiff’s demurrer raises the question whether there is in tins state any common-law liability of a municipal corporation; and if there is, whether it exists in the class to which the present case belongs.'
WMle it is the law of this jurisdiction that towns are to a certain extent a part of the state, and therefore not suable at common law, no case has gone so far as to hold that tins rule applies
The mere fact that a town is engaged in the performance of a public duty is not enough to free it from all common-law liability for its acts, if the word public is to be taken in the broad sense of including every enterprise which may be supported by taxation.
A careful consideration of these eases must lead to the conclusion that there is no general rule by which the common-law liability of towns has been ascertained. That there is such a liability in certain cases is well established in this state. See cases hereinafter cited. What cases will or will not come within this (¡lass may be determined, to some extent, by a process of elimination. It appears that towns are not liable at common law, (1) for the improper discharge of a purely governmental function (Eastman v. Meredith, 36 N. H. 284; Doolittle v. Walpole, 67 N. H. 554); (2) for neglect to perform duties imposed upon them without their consent (Sargent v. Gilford, 66 N. H. 543); (3) for the acts of officers whose powers and duties are so fixed by the legislature that the town cannot control or direct their actions. Ball v. Winchester, 32 N. H. 435; Hardy v. Keene, 52 N. H. 370; Edgerly v. Concord, 62 N. H. 8; Gross v. Portsmouth, 68 N. H. 266. In every case in which it has been hold that there was no liability, the decision has been placed upon one of these grounds. In no case has non-liability been put upon the broad ground that there is no common-law liability of a municipal corporation.
On the other hand, there are numerous cases wherein towns were held to answer for their acts without any statutory liability,
So far as the questions involved in this branch of the law have been considered, the decisions seem to recognize three classes of cases in which towns are liable for torts at common law: (1) For negligent acts (even in the discharge of imposed duties) which interfere with the rights of others, provided such rights do not depend upon the imposed duty. Gilman v. Laconia, 55 N. H. 130; Carpenter v. Nashua, 58 N. H. 37; Parker v. Nashua, 59 N. H. 402;
Non-liability has not been put upon the same ground in all cases; nor have the cases in which a liability was found to exist all depended upon a common rule. It is only in an attempt to put upon common ground cases which involve different principles that confusion arises. When the cases are properly classified they appear to be consistent with each other, and, in a general way, with the law of other states. See 2 Dill. Mun. Cor., ss. 962, 966, 971, 974, 981, 985. Viewed only with reference to the work in which the town was engaged, the decision in Sargent v. Gilford, 66 N. H. 543, that the town was not liable at common law for injuries received by a traveler, by reason of a defect in the highway, might seem to conflict with the holding that a town was so liable for building a highway so as to flow water over the abutter’s land. Gilman v. Laconia, 55 N. H. 130. But the reason for the different results is plain. To establish his case a plaintiff must show that he had a right which has been infringed. In Sargent v. Gilford, the. only right upon which the plaintiff could rely was the public one of using the highway, and the only duty of the town was the statutory one to maintain the way. The plaintiff’s injury was suffered while he was in the exercise of a public fight, and
In many of the cases where a recovery has been had, the action was justified by being necessary to carry out the spirit of the supreme statute law. Although our constitution contains no express declaration that private property shall not be taken for public use without compensation, that rule is implied from the spirit of equality which pervades its every part. Eaton v. Railroad, supra, recognizes the doctrine that this rule authorizes suits against municipalities for damage to property occasioned in the execution of a public work. It is urged that this rule applies only to property that is taken directly for, and not merely in the course of the execution of, public works. For example : If it is useful for a municipality to lay a water pipe across, A’s land, he is to he compensated; and if the act be done Avithout process of law
It is also said that the flooding of B's land is not the result of a public work, but of the negligence of the superintendent, and, therefore, the municipality is not liable. The answer to this is that the law so far takes notice of the fallibility and imperfection of all human endeavor that one who entrusts his affairs to his servant, under instructions, either express or implied, to do only that which is lawful, is responsible for the neglect of the servant so to do. The general rules of agency apply to towns. They are “ subject to the same implications arising from their corporate acts, or the acts of their agents within the scope of their authority, without either vote, deed, or writing, as in the case of natural persons.” Glidden v. Unity, 33 N. H. 571, 577; Holderness v. Baker, 44 N. H. 414, 417; Gray v. Rollinsford, 58 N. H. 253; Kinsley v. Norris, 62 N. H. 652.
The claim is also advanced that it is unconstitutional to take the taxpayer’s property to pay damages caused by the negligent acts of the superintendent,— that the power to tax extends only to public purposes, and not to making reparation for injuries done by public agents. The argument proves too much. It denies the right to tax for any but strictly governmental purposes; while the law is that “ in determining this question, the legislature cannot be held to any narrow or technical rule. Not only are certain expenditures absolutely essential to the continued existence of the government and the performance of its ordinary functions, but as a matter of policy it may sometimes be proper and wise to assume other burdens which rest entirely upon considerations of honor, gratitude, or charity.” Cool. Con. Lira. *488. For many years towns in this state have been called upon to respond to suits to enforce a statutory liability for damages caused to individuals by a failure to keep highways in repair. Although there was no such liability at common law, and although the nature and extent thereof under the statute has been treated of at great length, it has never before been suggested that the statute was an unconsti
The argument that, according to a perfect theory of the nature and end of all government, municipalities partake of the sovereign character of the state, and so cannot be liable to suit except when made so by statute, has not been overlooked. The argument would be entitled to weight if tins was a new question, but that is not the present situation. It may be that a corporation, in part governmental and sovereign, and in part individual and accountable, does not satisfy the demands of pure reason or realize the ideal of those skilled in jrolitical science. The same thing may be said of .many of the rules of the common law which have been adopted; yet those' rules are of binding obligation. Thompson v. Esty, 69 N. H. 55. So as to the nature of municipal corporations, the theory of their dual character is too firmly imbedded in the common law to be removed, except by the law-making power. Whether it would be better if they were liable for every breach of duty, as suggested in Ball v. Winchester, 32 N. H. 435, 442, or whether, as the defendants here contend, they ought not to be liable at all, is a question to be settled by the legislative department of the government.
Ever since the time of the Homan empire, municipalities have been subject to private law relations, not applicable to sovereignty. 1 Dill. Mun. Cor., s. 3. The exact location of the divisional line between those matters which are governmental and those which are not, has not always been clearly indicated. Courts have not agreed upon the precise location of the fine; but there has been no dissent from the proposition that municipalities have duties on each side thereof. This has been the law of the state for many years. It may fairly be assumed that many instances of legislative action or non-action have been based upon it. Like the doctrine of the peculiar corporate character of proprietors of towns, the authority for it is to be found “in the records of New England, in the decisions of courts.” Proprietors of Cornish v. Kenrick, Smith (N. H.) 270, 273. It is a part, of the common law, and cannot be abolished except by the law-making power.
, It may be, and probably is, true that the decided cases do not cover every phase of common-law municipal liability that may arise; but as they have sufficiently established the law for the purposes of the present case, it is not essential to pursue the general subject further. Nor is it necessary to inquire whether the grounds upon which non-liability has been placed are sound. The cases in which such a conclusion has been reached are of conse
The basis of the cause of action is the infringement of a private right, a violation of those rules of conduct which from being custom became laiv, and which now govern the conduct of all in their relations to others, be those relations either personal or proprietary. A pin vate right is infringed when a person’s health is injured by emptying a sewer wrongfully in the vicinity of his residence, the same as when water is wrongfully turned upon his land. “ On the question of liability, it might not be material whether the invasion were of bricks or of polluted atmosphere.” Towne v. Thompson, 68 N. H. 317, 322. The case does not differ in principle from that of an employee who is entitled to be provided with a reasonably safe place in which to work, and to be associated with reasonably competent fellow-servants. The landowner’s right of property and the laborer’s right of personal safety are alike given by the common law. They are both private rights, and the invader of the one is no more bound to answer for his acts than the infringer of the other. “ The whole superstructure of the liability of municipal corporations for negligence and for trespasses upon property is built upon the same idea; since there can be no distinction on principle between the case where a municipal corporation — let us say in the prosecution of some public work, within its charter powers — unlawfully damages my property or injures my person, and where, acting for its own purposes, and within the scope of its charter powers, it takes my property.” Seymour I). Thompson in 83 Am. Law Revo 708.
The rule which governs this case is clearly stated by Perley, C. J., in Eastman v. Meredith, 36 N. H. 284, 295, where it is said: “ 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 the neglect of the town to perform a public duty. The corporation being authorized by law to execute the 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 lie 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;
Were the water commissioners servants of the city, or were they “ an independent board ” whom the city could not “ direct or control ” “ in the discharge of their duties ” ? The act authorizing the city to establish water-works gives the full control thereof to the city, and provides that “ the city may, either before or after the construction of the same, place them under the direction of a superintendent, or board of water commissioners, or of both, with such powers and duties as may, from time to time, be prescribed by the city council of said city.” Laws 1871, c. 69, s. 5. Acting under this authority the city passed an ordinance establishing a board of water commissioners, to whom it entrusted the entire management of its water-works. Concord Rev. Orel. 1894, c. 22, ss. 2, 4. It is argued that this ordinance is in effect the same as a statute enacted by the legislature, and that therefore the commissioners come within the class of independent officers whose acts the city cannot control or regulate and for which it is not liable. The defect in this reasoning is apparent. The officer whose duties are fixed by the legislature is beyond the control of the city; and however much it may desire to change those duties, it is powerless to do so. On the other hand, the ordinance in this case, although enacted in the form of legislation, is a mere rule of conduct or delegation of authority given by the city itself to those employed in its service. It may change the duties or take away the powers granted at any time ; and the ordinance in express terms reserves to the city councils the right to remove the commissioners, Ib., s. 3. The commissioners -were servants of the city. Grimes v. Keene, 52 N. H. 330, 335.
The defence that the suit should he against the precinct and not against the city is not available. “ The water commissioners' are the officers of the whole city and not of the precinct, are elected by the city councils, and, so far as they are answerable for their conduct, are answerable to the city and not to the precinct.” Brown v. Concord, 56 N. H. 375, 379.
Demurrer sustained.
Lead Opinion
The plaintiff's demurrer raises the question whether there is in this state any common-law liability of a municipal corporation; and if there is, whether it exists in the class to which the present case belongs.
While it is the law of this jurisdiction that towns are to a certain extent a part of the state, and therefore not suable at common law, no case has gone so far as to hold that this rule applies *107
to all cases. There are some expressions in Wooster v. Plymouth,
The mere fact that a town is engaged in the performance of a public duty is not enough to free it from all common-law liability for its acts, if the word public is to be taken in the broad sense of including every enterprise which may be supported by taxation. *108
There is no case laying down such a doctrine in this state. Farnum v. Concord,
A careful consideration of these cases must lead to the conclusion that there is no general rule by which the common-law liability of towns has been ascertained. That there is such a liability in certain cases is well established in this state. See cases hereinafter cited. What cases will or will not come within this class may be determined, to some extent, by a process of elimination. It appears that towns are not liable at common law, (1) for the improper discharge of a purely governmental function (Eastman v. Meredith,
On the other hand, there are numerous cases wherein towns were held to answer for their acts without any statutory liability, *110
either expressly or impliedly imposed. Quantum meruit has been maintained to recover for building a highway when the plaintiff had failed to perform a special contract. Wadleigh v. Sutton,
So far as the questions involved in this branch of the law have been considered, the decisions seem to recognize three classes of cases in which towns are liable for torts at common law: (1) For negligent acts (even in the discharge of imposed duties) which interfere with the rights of others, provided such rights do not depend upon the imposed duty. Gilman v. Laconia,
Non-liability has not been put upon the same ground in all cases; nor have the cases in which a liability was found to exist all depended upon a common rule. It is only in an attempt to put upon common ground cases which involve different principles that confusion arises. When the cases are properly classified they appear to be consistent with each other, and, in a general way, with the law of other states. See 2 Dill. Mun. Cor., ss. 962, 966, 971, 974, 981, 985. Viewed only with reference to the work in which the town was engaged, the decision in Sargent v. Gilford,
In many of the cases where a recovery has been had, the action was justified by being necessary to carry out the spirit of the supreme statute law. Although our constitution contains no express declaration that private property shall not be taken for public use without compensation, that rule is implied from the spirit of equality which pervades its every part. Eaton v. Railroad, supra, recognizes the doctrine that this rule authorizes suits against municipalities for damage to property occasioned in the execution of a public work. It is urged that this rule applies only to property that is taken directly for, and not merely in the course of the execution of, public works. For example: If it is useful for a municipality to lay a water pipe across A's land, he is to be compensated; and if the act be done without process of law *113 or his consent, he may have redress. On the other hand, if in the building of the same water-works the superintendent negligently floods B's garden, it is said that the corporation is not liable because the act does not inure to the benefit of the municipality. If this reasoning were sound, it would follow that the measure of A's damages would be the benefit to the municipality; and the fact that he is entitled to the value of the property taken shows conclusively that the right to recover rests upon a broader principle than that of an implied promise to pay for benefits received. In these matters, "the dictate of justice is that no person shall suffer unequally, and, if he does, that all should make compensation." 2 Dill. Mun. Cor. s. 1051, c.
It is also said that the flooding of B's land is not the result of a public work, but of the negligence of the superintendent, and, therefore, the municipality is not liable. The answer to this is that the law so far takes notice of the fallibility and imperfection of fill human endeavor that one who entrusts his affairs to his servant, under instructions, either express or implied, to do only that which is lawful, is responsible for the neglect of the servant so to do. The general rules of agency apply to towns. They are "subject to the same implications arising from their corporate acts, or the acts of their agents within the scope of their authority, without either vote, deed, or writing, as in the case of natural persons." Glidden v. Unity,
The claim is also advanced that it is unconstitutional to take the taxpayer's property to pay damages caused by the negligent acts of the superintendent, — that the power to tax extends only to public purposes, and not to making reparation for injuries done by public agents. The argument proves too much. It denies the right to tax for any but strictly governmental purposes; while the law is that "in determining this question, the legislature cannot be held to any narrow or technical rule. Not only are certain expenditures absolutely essential to the continued existence of the government and the performance of its ordinary functions, but as a matter of policy it may sometimes be proper and wise to assume other burdens which rest entirely upon considerations of honor, gratitude, or charity." Cool. Con. Lim. *488. For many years towns in this state have been called upon to respond to suits to enforce a statutory liability for damages caused to individuals by a failure to keep highways in repair. Although there was no such liability at common law, and although the nature and extent thereof under the statute has been treated of at great length, it never before been suggested that the statute was an unconstitutional *114 infringement of the rights of taxpayers. If their property may be taken for a liability which was unknown to the common law, much more may it be for municipal obligations which the common law recognized.
The argument that, according to a perfect theory of the nature and end of all government, municipalities partake of the sovereign character of the state, and so cannot be liable to suit except when made so by statute, has not been overlooked. The argument would be entitled to weight if this was a new question, but that is not the present situation. It may be that a corporation, in part governmental and sovereign, and in part individual and accountable, does not satisfy the demands of pure reason or realize the ideal of those skilled in political science. The same thing may be said of many of the rules of the common law which have been adopted; yet those rules are of binding obligation. Thompson v. Esty,
Ever since the time of the Roman empire, municipalities have been subject to private law relations, not applicable to sovereignty. 1 Dill. Mun. Cor., s. 3. The exact location of the divisional line between those matters which are governmental and those which are not, has not always been clearly indicated. Courts have not agreed upon the precise location of the line; but there has been no dissent from the proposition that municipalities have duties on each side thereof. This has been the law of the state for many years. It may fairly be assumed that many instances of legislative action or non-action have been based upon it. Like the doctrine of the peculiar corporate character of proprietors of towns, the authority for it is to be found "in the records of New England, in the decisions of courts." Proprietors off Cornish v. Kenrick, Smith (N.H.) 270, 273. It is a part of the common law, and cannot be abolished except by the law-making power.
It may be, and probably is, true that the decided cases do not cover every phase of common-law municipal liability that may arise; but as they have sufficiently established the law for the purposes of the present case, it is not essential to pursue the general subject further. Nor is it necessary to inquire whether the grounds upon which non-liability has been placed are sound. The cases in which such a conclusion has been reached are of consequence here *115 only so far as an investigation of them is needed to show that they are not based upon a theory of general municipal immunity from suit. Taking the law as it has been declared in this state, a town is liable for the negligence of its agents which affects the private property right of others. Is it any less liable when the right involved is personal instead of proprietary?
The basis of the cause of action is the infringement of a private right, a violation of those rules of conduct which from being custom became law, and which now govern the conduct of all in their relations to others, be those relations either personal or proprietary. A private right is infringed when a person's health is injured by emptying a sewer wrongfully in the vicinity of his residence, the same as when water is wrongfully turned upon his land. "On the question of liability, it might not be material whether the invasion were of bricks or of polluted atmosphere." Towne v. Thompson,
The rule which governs this case is clearly stated by Perley, C.J. in Eastman v. Meredith,
Were the water commissioners servants of the city, or were they "an independent board" whom the city could not "direct or control" "in the discharge of their duties"? The act authorizing the city to establish water-works gives the full control thereof to the city, and provides that "the city may, either before or after the construction of the same, place them under the direction of a superintendent, or board of water commissioners, or of both, with such powers and duties as may, from time to time, be prescribed by the city council of said city." Laws 1871, c. 69, s. 5. Acting under this authority the city passed an ordinance establishing a board of water commissioners, to whom it entrusted the entire management of its water-works. Concord Rev. Ord. 1894, c. 22, ss. 2, 4. It is argued that this ordinance is in effect the same as a statute enacted by the legislature, and that therefore the commissioners come within the class of independent officers whose acts city cannot control or regulate and for which it is not liable. The defect in this reasoning is apparent. The officer whose duties are fixed by the legislature is beyond the control of the city; and however much it may desire to change those duties, it is powerless do so. On the other hand, the ordinance in this case, although enacted in the form of legislation, is a mere rule of conduct or delegation of authority given by the city itself to those employed in its service. It may change the duties or take away the powers granted at any time; and the ordinance in express terms reserves to the city councils the right to remove the commissioners. Ib. s. 3. The commissioners were servants of the city. Grimes v. Keene,
The defence that the suit should be against the precinct and not against the city is not available. "The water commissioners are the officers of the whole city and not of the precinct, are elected by the city councils, and, so far as they are answerable for their conduct, are answerable to the city and not to the precinct." Brown v. Concord,
Demurrer sustained.
PARSONS and YOUNG, JJ., concurred in the result only, holding that there is a statutory liability and dissenting from the decision that there is a liability at common law: the officers concurred. *118
Concurrence Opinion
concurred in the result only, holding that there is a statutory liability and dissenting from the decision that there is a liability at common law: the others concurred.