§ 933 (747). Neglect of Duty in Respect of repair of Streets, &c. In Tennessee a municipal corporation is considered liable, upon the general principles of the common law, to indictment for neglecting its duty to keep its streets in reasonable repair, and it is no defence that the street is little used and is in a remote part of the town. And the mayor and aldermen may also be personally indicted for like neglect of duty. So in the same State it is held, upon the general principles of the law, that if a municipal corporation has power by its charter to pass such ordinances as may be necessary " to preserve the health of the town, and to prevent and remove nuisances," it is its positive duty to exercise this power, and that for a neglect of this public duty it or its officers are liable to an indictment. An indictment against the mayor and aldermen was accordingly sustained for Saukville v. State, 69 Wis. 178; McCrowell v. Bristol, 5 Lea (Tenn.), 685; State v. Portland, 74 Me. 268 (an indictment for so constructing a sewer that the outfall created a public nuisance sustained); Redfield on Railways, chap. xxix.; Morawetz Corp. (2d ed.), secs. 732, 733. It is held in Massachusetts that a railroad constructed over a public highway in such a manner as to obstruct the public travel is liable to indictment, this being a proper mode of redress for the public. Commonwealth v. Nashua & L. R. R. Corp., 2 Gray (Mass), 54 (1854); Cambridge v. Charlestown R. R. Co., 7 Met. (Mass.) 70. See Louisville & N. R. R. Co. v. State, 3 Head (Tenn.), 523. Twenty years' acquiescence, on the part of a town, in the doings of their selectnien in the laying out of a highway and the making of repairs during that period, estops the town when indicted from deny. ing that the road was legally laid out. State v. Boscawen, 32 N. H. 331 (1855). See ante, chapter on Dedication, secs. 637, 642. 1 Chattanooga v. State, 5 Sneed, 578 (1858); State v. Barksdale, 5 Humph. 154; State v. Murfreesboro, 11 Humph. 217, where form of indictment is given; Louisville & N. R. R. Co. v. State, 3 Head, 523; post, chap. xxiii., as to repairs of streets. wealth, 44 Pa. St. 197. Authorities relating to indictments against public officers, see chapter on Corporate Officers, ante, chap. ix. sec. 237, note. The Supreme Court of Illinois has decided that an alderman was indictable as at common law for a proposal made by himself to receive a bribe to influence his official action. Walsh v. People, 65 Ill. 58 (1873); s. c. 5 Chicago Legal News, 541. Requisites of indictment against official or corporate body for non-repair of streets. State v. Halifax Comm'rs, 4 Dev. L. (N. C.) 345; ante, chap. ix. sec. 237, note. Facts which will sustain an indictment. Davis v. Bangor, 42 Me. 522; Howard v. Bridgewater, 16 Pick. (Mass.) 189. An indictment under statute of Alabama which charges that defendants, "al dermen and corporate officers of the town of G., failed and refused, as officers and supervisors of the public streets and highways in said town, to perform their duties as said corporate officers of all the public streets," is fatally defective on demurrer ; 1st, because it does not state that the said town of G. is incorporated under the laws of the State; 2d, because it does not state that the inhabitants of said town are exempted from working on public roads; 3d, because it does not state that any of the streets of said town were out of repair, and so remained for more than ten days at any one time, without reasonable excuse. Nowlin v. State, 49 Ala. 41 2 Hill v. State, 4 Sneed, 443 (1857). And in Pennsylvania an indictment lies as at common law against public officers for neglect of public duties; and the prin- (1873). ciple was extended to a contractor for the permitting a slaughter-house to be kept upon the private property of a citizen of the town, to the annoyance of the inhabitants and the endangering of the public health, the court remarking that "an indictment against the corporation is the proper mode of redress by the public for a grievance of this nature." So, also, in Kentucky a municipal corporation is indictable as at common law for suffering its streets to become and remain out of repair.2 In Vermont a town is liable to an indictment as at common law for not erecting a bridge pursuant to an order from a competent tribunal.3 In Maine, towns charged with the maintenance of public highways are by statute indictable for failing to discharge their duty in this respect; and the general principle is asserted in such cases, that where the town is civilly liable in damages it may be indicted.* § 934 (748). Repair of Bridges; Omission of Duty. On the ground that the legislation, both colonial and State, had imposed the 1 State v. Shelbyville, 4 Sneed (Tenn.), 176 (1856); Hill v. State, Ib. 443; McCrowell v. Bristol, 5 Lea (Tenn.), 685. But in Vermont it has been held that a town is not indictable for not removing nuisances; as, for example, a stagnant and noxious pool of water beside a street, not created by it or its agents. State v. Burlington, 36 Vt. 521 (1864). Whether a municipal corporation is liable to indictment for keeping and maintaining a "calaboose," if it is so situated or managed as to become a nuisance, quære. Paris v. People, 27 Ill. 74. 2 Commonwealth v. Hopkinsville, 7 B. Mon. (Ky.) 38 (1846); Hamar v. Covington, 3 Met. (Ky.) 494 (1861), per Peters, J. 3 State v. Whittingham, 7 Vt. 390 (1835). 4 Per Weston, C. J., State v. Gt. Works Milling & M. Co., 20 Me. 41 (1841); Davis v. Bangor, 42 Me. 522 (1856); State v. Gorham, 37 Me. 451 (1854), where a town was held indictable for neglecting to keep in repairs a bridge and abutments erected by a railroad company over a railroad where it crosses the public highway. The primary liability under the statute, as respects the public, was considered as resting upon the town rather than upon the railroad company; the latter, however, would be liable to the town, which could enforce such liability by mandamus, to com pel the railroad companies to keep such bridges as the law requires them to maintain in repair; and see State v. Portland, 74 Me. 268, noted ante, sec. 932, note. See Cambridge v. Charlestown R. R. Co., 7 Met. (Mass.) 70; Reg. v. Birmingham & Gl. Ry. Co., 9 Car. & P. 469. Mandamus lies to compel a railroad company to restore the highway. People v. Dutchess & C. R. R. Co., 58 N. Y. 152 (1874); Indianapolis & Cinc. R. R. Co. v. Lawrenceburg, 37 Ind. 489. Remedy by indictment. Rex v. Oxfordshire, 16 East, 223; Pittsburg, V. & C. Ry. Co. v. Commonwealth, 101 Pa. St. 192; Louisville & N. R. R. Co. v. State, 3 Head (Tenn.), 523. Or, if money be expended by the town in necessary repairs, by an action on the case. Further, as to liability of towns for defects in railroad bridges erected on a public highway, see Sawyer v. Northfield, 7 Cush. (Mass.) 490, where under the statute of Massachusetts, a different conclusion was reached. Under the statute of the latter State, the liability of the town is qualified, and does not exist where the turnpike or bridge or railroad company is bound by law or charter to keep the roads and bridges built by them in repair, in which case they, and not the towns, are liable for neglect of this duty. See, further, ante, sec. 707, and note; post, chap. xxiii. sec. 1037; 2 Thomps. Neg. 805. duty of repairing bridges on the township, and had never recognized the common-law principle of holding the inhabitants of counties responsible for repairs, the Supreme Court of New Jersey holds that the inhabitants of counties in that State are not indictable for not repairing bridges over rivers; nor at common law were they so indictable for not repairing bridges over canals. The court enters a caveat against "acquiescing in the dicta in the books," asserting a doctrine which would make the inhabitants of townships or the board of freeholders indictable for the non-repair of bridges.1 Under a statute investing the county commissioners "with a general superintendence over the public roads," prescribing their duties and the manner of raising means, and also providing for the indictment of the commissioners for " palpable omission of duty," no prosecution can, in the opinion of the Supreme Court of Illinois, be sustained, unless there was a palpable omission of a duty imperatively required by law in a matter involving no discretion, or a wil ful and corrupt as well as palpable neglect of a discretionary duty; mere error of judgment or departure from sound policy not being sufficient where the defendants are vested with a discretionary power.2 § 934 a. Concluding Observations. Except the subject of ordinary common-law actions to enforce by way of damages the liabilities of municipal corporations on contracts and for torts, which will be treated in our next chapter, we have in this, and in the two preceding chapters relating to mandamus and quo warranto, completed our survey of the circle of remedies in our jurisprudence applicable to such corporations. While taken as a whole it cannot be said that either the public or individuals aggrieved are left without substantial means to keep municipalities and their officers within their chartered limits and powers, and to compel obedience to law, the result of the examination strongly impresses our mind with the conviction that the remedies to effectuate these ends are unnecessarily artificial, intricate, and uncertain. It is Utopian to suppose that in our alvanced and complex civilization legal rights are always simple,3 or 1 State v. Hudson County, 30 N. J. L., 137 (1862). The opinion in this case, by Vredenburgh, J., was evidently prepared with much care, and is highly interesting. Ante, sec. 708. 2 Eyman v. People, 6 Ill. 8 (neglecting to repair bridge), and see State v. Portland, 74 Me. 268. Further, as to Bridges, see chap. xviii. on Streets, ante, sec. 728; chap. xx. on Mandamus, sec. 836; post, chap. xxiii. 8 "The rights of men are incapable of [exhaustive] definition, but are not impossible to be discerned."- Burke, French Revolution. While this profound political thinker had especial reference to the natural or civil rights of men, his observation equally applies to their legal rights. that by legislative provision they can all be clearly defined, catalogued, and formulated, in advance; but there is no inherent reason why remedies for the enforcement of rights and the redress of wrongs should not in all cases be simple and easily understood. Owing to the accidental and irregular mode in which our law has been developed, we have in almost every case to consider: (1) Whether any of the usual common-law actions is adapted to the case in hand, and adequate to the ends of justice. (2) Whether there is any special statutory remedy; and if so, whether it is exclusive or cumulative. (3) Whether any of the extraordinary remedies, as distinguished from the ordinary remedies of the common law, and also as distinguished from equitable remedies, is applicable to the case, and adequate. The boundary between these extraordinary remedies inter sese, and between them and the ordinary remedies at law, is at many places confused or obscure. And when we reach the grave question whether there is in the particular instance a remedy in equity, we are driven to ascertain the general boundary lines of the province of remedial equity, as distinguished, not only from the ordinary, but also as distinguished from the extraordinary remedies of the common law, an inquiry which, while always important in our jurisprudence as it stands, is oftentimes one of exceeding difficulty and nicety. It is obvious that by judicious legislation remedial procedure could be greatly simplified and improved. It is satisfactory to observe the marked tendency within the last fifty years both of legislatures and courts to disembarrass legal proceedings from needless refinements and technicalities; but there are obstacles in the way of a harmonious and complete system of remedial procedure which can only be removed and wants which can only be supplied by legislative action. 1 "Our system of remedial law resembles an old Gothic castle, erected in the days of chivalry, but fitted up for a modern inhabitant. The moated ramparts, the embattled towers, and the trophied halls are magnificent and venerable, but useless, and therefore neglected. The inferior apartments, now accommodated to daily use, are cheerful and commodious, though their approaches may be winding and difficult." 3 Black. Com. 268. This is a true picture; it is as exact as it is elegant, and none but a master could have produced it. May we be permitted to add that in making the reparations we would not destroy, plow under and build anew, but would make the approaches in the existing structure, few and plain, instead of leaving them numerous, winding, and difficult. CHAPTER XXIII CIVIL ACTIONS AND LIABILITIES. Actions on Contracts Secs. 935-947. sec. 935. 1. Liability on Contracts ultra vires as a defence- 3. Actions for Torts-Secs. 948-1052. 4. No liability in respect to the exercise of discretionary or legis lative powers sec. 949. 5. Or for imperfect execution of by-laws 6. sec. 950. Or for misconstruing extent of public powers- sec. 953. 7. Or, without a statute creating it, for buildings demolished to prevent fire-secs. 955-958. 8. Or for property destroyed by mobs - sec. 959. 9. Implied liability for neglect of corporate duty — secs. 961, 980, 983, 1017-1023 b. 10. Distinction in this respect between quasi corporations and municipal secs. 961-967, 1014, 1015-1023 b. 11. Liability for torts of officers and agents sec. 968 et seq. 12. et seq. 13. 973. 14. Respondeat superior, when applicable- secs. 974-980. 15. Respondeat superior; Who are, and who are not, corporate officers secs. 975-984. 16. Liability for neglect of corporate duty secs. 961, 980-984. 17. Liability in the capacity of property owner-secs. 985, 986. 18. No liability for acts authorized by charter or statute 987 et seq. sec. 19. Streets. May grade and change grade of streets secs. 989 et seq.; 995 a-995 c. 20. Streets. Remedy therefor, if given, must be followedsec. 993. |