76 N.J.L. 509 | N.J. | 1908
The opinion of the court was delivered by
We find it convenient to deal first with the liability of the city of Englewood.
The precise question involved is new in this court. In Kehoe v. Rutherford, 45 Vroom 659, there was active wrongdoing by the municipal authorities in collecting surface water and discharging it so that it injured the plaintiff’s land, but that act was the act of the corporation itself for a special corporate purpose. A distinction is made in the cases in other jurisdictions between such acts and acts done in performance of a governmental function in execution of powers of a public and general character, delegated to the municipal
The principle has been frequently applied to the acts of boards of health. Summers v. Daviess County, 103 Ind. 262; Mitchell v. Rockland, 52 Me. 118; Nicholson v. Detroit, 129 Mich. 246; Bryant v. St. Paul, 33 Minn. 289; Lowe v. Conroy, 120 Wis. 151. It seems to be founded in reason.
The acts complained of by the plaintiff were in performance of a governmental function imposed upon the board of health by the legislature, under a special statute relating to boards of health, for the benefit of the public at large. The duty was quite independent of any provisions of the city charter, and was in no way for the benefit of the city in its corporate capacity, or as the owner of property. The only connection, under the statute, between the city and the board of health is that the members of the board of health are appointed by the governing body of the city. This, however, did not make them the servants or agents of the city; they were public officers, notwithstanding the method of their appointment. Hafford v. New Bedford, 16 Gray 297; Fisher v. Boston, 104 Mass. 87; Murphy v. Needham, 176 Id. 422; Maxmilian v. Mayor, 62 N. Y. 160; Fetch v. Weare, 69 N. H. 617.
The city could.only be held by applying the rule respondeat superior, and that rule has no application in a case where the persons who commit the act complained of are neither the servants nor agents of the municipal corporation, nor acting in the performance of any corporate duty. So far as their act is
Ho liability of the city was shown and in that respect the nonsuit was right.
The statute creating the board of health authorizes it to adopt ordinances to prevent the spreading of dangerous epidemics or contagious diseases, and to maintain and enforce sufficient quarantine when it deems necessary. Gen. Btat., p. 1644, pi. 49. The board is required by section 13 to examine into all causes of disease injurious to the health of the inhabitants, and to cause the same to be removed and abated. Section 15 enacts that no suit shall be maintained in any of the courts of this state to recover damages against any such board, its officers or agents, on proceedings had by them to abate and remove a cause of disease, unless it shall be shown in such suit that the cause of disease did not exist, was not hazardous and prejudicial to the public health, and that the board acted without reasonable and probable cause to believe that such cause was in fact prejudicial and hazardous to the public health.
The evidence in the present case justified an inference on the part of the jury that scarlet fever did not in fact exist; and as the trial judge nonsuited the plaintiff his ruling cannot be vindicated, if the actual existence of the disease is essential to the justification of the defendants. The issue joined upon the pleadings was only whether there existed reasonable and
In the case of American Print Works v. Lawrence, 1 Zab. 248, and on appeal, sub nom. Hale v. Lawrence, Id. 714; S. C., 3 Id. 590, it was held in the Supreme Court in a very able opinion by Chief Justice Green, that the defendant, who, as mayor of New York City, had destroyed real and personal property in order to stop the spread of a great lire, was not to be held responsible since he acted in pursuance of a duty imposed upon him by statute, and not for private emolument, or for his individual benefit. Chief Justice Green said (p. 260) : “It is a well-settled principle that where a person in discharge of a public duty, not acting for private emolument, unwittingly injures another in the performance of the act, while acting with due skill and caution, he is not answerable for, damages.” The judgment was reversed in this court, upon the ground that the statutes of New York provided no compensation for the personal property destroyed, that the facts amounted to a taking of property for public use without compensation, and the case was, therefore, within the prohibition of our state constitution. The case afterwards came before the Supreme Court on a demurrer to amended pleas, and the judgment there rendered in favor of the defendant was affirmed in this court. 3 Id. 590. Justice Carpenter, in the course of his opinion took occasion to say (at p. 600) : “A public officer, acting in good faith, upon a sudden and alarming emergency, under the sanction of a constitutional and valid law in a matter of public duty, is not to be held responsible for the unavoidable and necessary result of such act of duty. An injured party may have a right to resort to the public for satisfaction, but the law has ever held that the officer himself, not exceeding his power and not guilty of oppression or bad faith, is not personally liable.” He quotes with approval what was said by Justice Nevius in Sinnickson v. Johnson, 2 Harr. 129, 150, where a distinction was drawn between acts done exclusively for the public inter
In the discussion which arose after the decision of the famous ease of Ashby v. White, 1 Sm. Lead. Cas. (7th Am. ed.) 455, it was expressly stated in the argument prepared by the committee of the house of lords, which was principally drawn up by the Lord Chief Justice, that fraud and malice were the gist of the action. The language quoted on page 484 is: “There is no danger to an honest officer that means to do his duty; for where there is a real doubt touching the party’s right of voting, and the officer makes use of the best means to be informed; and it is plain his mistake arose from the difficulty of the case, and not from any malicious or partial design, no jury will find an officer guilty in such a case, nor can any court direct them to do it, for it is the fraud and the malice that entitles the party to the action.” In that case fraud and malice were averred in the declaration. Some American courts have gone so far as to hold that the officer is exempt, even in a ease of corruption and malice. Spaulding v. Vilas, 161 U. S. 483, 493, 499, which was an action against the postmaster-general. Weaver v. Devendorf, 3 Denio 117, which was an action against an assessor for loss caused by an illegal assessment. Where there is no fraud or malice, the overwhelming weight of authority is in favor of
The principle was held applicable in Teall v. Felton, 1 N. Y. 537, to the case of a postmaster who assumed to charge letter postage on a newspaper, but it was held in that particular ease that the postmaster did not act in a judicial capacity. The rule has been applied in the case of health officers. Whidden v. Cheever, 69 N. H. 142.
The exemption of officers from liability extends only to matters in which they have jurisdiction under the statutes; and it may be said that the board of health has no jurisdiction unless a cause of disease actually exists. This view is too narrow. The principle which was adopted by this court, and vindicated in an able opinion of Chief Justice Beasley in Grove v. Van Duyn, 15 Vroom 654, is applicable.
It is enough if the matter is colorably, though not really within their jurisdiction. A different view has been expressed in Massachusetts. Miller v. Horton, 152 Mass. 540, which was followed in Pearson v. Zehr, 138 Ill. 48, and in Lowe v. Conroy, 120 Wis. 151. The reasons are well stated by Mr. Justice Holmes, but are combatted with equal force by Justice Devens, and the case is weakened as an authority by the fact that it was decided by a bare majority of the court. Upon principle, we cannot distinguish the case from those above cited, where administrative officers were held exempt when called upon to act judicially. If a postmaster-general, or a postmaster or a collector of a port, or an assessor of taxes are to be immune when their error in judgment causes the loss of another’s liberty or property, we think a board of health is entitled to a like immunity. A justice of the peace is immune if he acts in a matter colorably within his jurisdiction. The underlying reason is not the judicial character of the officer, but the judicial character of the act, and the public necessity that public agents engaged in the performance of a public duty in obedience to the command of a statute, should not suffer personally for an error of judgment which the wisest and most circumspect cannot avoid. It is not quite accurate to say that in such cases a man is deprived of liberty or property without
Miller v. Horton was decided in the absence of a statute such as ours, forbidding an action against the board unless lack of reasonable and probable cause can be shown. The same distinguished court has vindicated the right of the legislature to require all imported rags to be put through a disinfecting process at the expense of the owner, whether actually infected or not (Train v. Boston Disinfecting Co., 144 Mass. 523), upon the ground that the legislature had the power to pronounce imported rags not yet disinfected nuisances in themselves, or, as Justice Holmes said in the later case, because the'dangér was toó great to permit discrimination. What our legislature has done in the Health act is in substance to say that anything which may possibly be a cause of disease is subject to the regulations of the board of health when that board has reasonable and probable cause to think it to be in fact a cause of disease.' Under such a statute the cases above cited from Massachusetts, Illinois and Wisconsin are not in point, and there is no’ reason why the or
The only difficulty which arises is that caused by the first opinion of this court in American Print Works Co. v. Lawrence. We there held that the mayor and aldermen of New York could not be exempt from civil liability where their act resulted in what this court held to be a taking of private property for public use contrary to our constitution. In view of the subsequent opinion of the court in that case, and the eminence of the judges of the Supreme Court, whose opinion was reversed in the first case, we think that, although we are bound by the actual decision of this court reported in 1 Zab., we ought not to extend it further than the exact point decided requires. It was limited to a case where private property was taken for public use; and it was held that destruction to prevent the spread of a conflagration was such a taking. In the present case there was no taking of private property for public use. The acts of the- defendants amounted to a mere trespass. It is urged, however, that the same principle ought to be applied, because of the fourteenth amendment to the federal constitution, which prohibits a state from depriving a citizen of liberty without due process of law. To this we think there are two answers. In fact, the plaintiff was not deprived of his liberty; and the conduct of the defendants amounted to due process of law, as that term is used in cases of this character. He was not deprived of his liberty, because the option was given to him to quarantine his daughter in a room of the house, if he so chose. He elected the
Again, in cases affecting the public health, due process of law does not always require notice and a hearing. People v. Board of Health, 140 N. Y. 1. Where the board of health is required to act upon an emergency, due process of law requires only that they should be liable to an action in case they act wrongfully; but the action to which they are .liable is only such action as the law gives. In this case the common law, as we have already shown, gave no right of action if the matter upon which the board decided was colorably within its jurisdiction. The object of the fourteenth amendment was not to give parties remedies which did not exist at the common law, but to- protect them against hostile action by the state depriving them of the existing remedies. United States v. Cruikshank, 92 U. S. 542.
There is nothing in Hutton v. Camden, 10 Vroom 122, inconsistent with our view. The alleged nuisance in that case consisted in the fact that the defendants’ lot lay below the grade of the street, so that water collected there, and the order of the board of health was to fill the lot to grade. Obviously this presented no such emergency as required immediate action. There was opportunity for notice and a hearing. That case was a suit by the city to recover the cost of filling the lot to grade; and a distinction is to be made between
Hutton v. Camden was a case where it was attempted to make the adjudication of the board of health that a nuisance existed, final and conclusive, not only for the protection of the board against an action of trespass, but as basis of a legal liability of the landowner. In the present case, the legislature has itself undertaken in effect to make a nuisance of what the board of health shall, upon reasonable and probable cause, determine to be a cause of disease. It is unnecessary to cite the numerous cases decided by the Hnited States Supreme Court justifying such a legislative exercise of the police power. In Mugler v. Kansas, 123 U. S. 623, a statute declaring all places in which intoxicating liquors are manufactured, sold, bartered or given away, to be common nuisances, was sustained, although the effect was to destroy the value of property. In Holden v. Hardy, 169 Id. 366, the Eight-Hour law of Htah was sustained, although it interfered with the freedom of contract. In Jacobson v. Massachusetts, 197 Id. 11, the Compulsory Vaccination act of Massachusetts was sustained, although it interfered with a man’s per
The common law rights of the plaintiff are protected by the constitution, but the legislature has, by the Health act, given the plaintiff a right of action against the board as such where he can show that the cause of disease did not exist; that it was not hazardous and prejudicial to the public health, and that the board acted without reasonable and probable cause to believe that it was in fact prejudicial and hazardous to the public health. Gen. Btat., p. 1638, pi. 15. Although the language of the section is in form that no suit shall be maintained against the board of health, unless these facts are established, the necessary implication is that if the facts are established, a suit may be maintained.
In giving this action, the legislature had the right to determine what facts should be necessary to sustain it. They imposed no novel or unreasonable condition. The provision requiring that the plaintiff should show that the board of health acted without reasonable or probable cause, is in line with the existing common law in cases of this character. By common law an officer was justified, in certain cases, in making an arrest, where he had reasonable and probable cause for belief in the guilt of the person detained; and in actions for libel, a communication, fairly made by a person in the discharge of some public or private duty, whether legal or moral, is privileged, in the absence of proof of malice. The principle underlying these cases is applicable to the present case. By the act of 1903 (Pamph. L., p. 96), it is made a crime for any person, having reason to believe that he is affected with scarlet fever, to appear in any public place, and for any person knowingly to subject another, without the lat
The question remains whether a ease is made out under this statute against any of the defendants. As to the board of health, it is clear that they acted upon the advice of their own physician, supported by the report made to them of the opinion of four other local physicians. We think that they were not bound to accept the opinion of the physician called by the plaintiff, and the specialist called from New York, but were justified in relying upon the advice of their own officer.
The case as to the physician himself is somewhat different. Prior to establishing the quarantine he had, at the conference with the other physicians, expressed himself as satisfied with their diagnosis, and it may be that this evidence would be sufficient to carry the case to a jury, as to Dr. Bradner, if the question were properly a jury question. At the time this statute was adopted, the words “reasonable and probable cause” were a familiar expression in the law, arising most frequently in actions for malicious prosecution; and, however anomalous the rule may be, it was well established that the question of existence of reasonable and probable cause, in an action for malicious prosecution, was a question for the' court, where, as in this case, the facts are undisputed. McFadden v. Lane, 42 Vroom 624; citing with approval, Bell v. Atlantic City Railroad Co., 29 Id. 227; Magowan v. Rickey, 35 Id. 402. In an action for false imprisonment where the
Middleton, the inspector, seems to have acted only in carrying out the order of the board, whose servant he was, and comes within the words of the statute exempting officers or agents of the board from suit.
For the reasons stated we think the trial judge was right in directing a nonsuit, and the judgment should be affirmed, with costs.
For affirmance—The Chief Justice, Garrison, Swayze, Eeed, Trenchard, Parker, Bergen, Voorhees, Minturn, Vredenburgh, Vroom, Green, Gray, Dill, J.J. 14.
For reversal—The Chancellor, Bogert, J. 2.