
    Lewisburg.
    Dunningtons v. Pres. & Dir. N. W. Turnp. Road.
    1849. July Term.
    (Absent Cabell, P. and Brooke, J.)
    1. The President and Directors of the Northwestern Turnpike road, are a Corporation, liable to he sued for work and labour performed and materials furnished for them.
    
    2. This case distinguished from the case of Sayre against the same Corporation, 10 Leigh 454.
    This was an action of assumpsit in the Circuit court of Harrison county, by William M. and Allison Dunnington against the President and Directors of the Northwestern Turnpike Road, for work and labour and materials furnished for the Corporation. The declaration contained only the common counts. The defendants appeared and pleaded non assumpsit, on which plea the plaintiffs joined issue. At a subsequent day the defendants filed a demurrer to the declaration, in which the plaintiffs joined, and the cause coming on to be heard, the Circuit court sustained the demurrer; and there was a judgment for the defendants. Whereupon the plaintiffs applied to this Court for a supersedeas to the judgment, which was awarded.
    The question intended to be raised by the demurrer, was whether this action could be maintained against the President and Directors of the Northwestern Turnpike Road. By an act passed in the session of 1830-31, the Governor, Treasurer, Attorney General and Second Auditor, of the Commonwealth, were constituted a corporation by the name and style of the President and Directors of the Northwestern Turnpike Road, for the purpose of constructing a road on State account, from Winchester, in the county of Frederick, to some point on the Ohio river, with power to sue and be sued, plead and be impleaded, and to hold lands and tenements, goods and chattels, and the same to sell, dispose of and improve, in trust for the Commonwealth. The other provisions of the act of incorporation bearing on the question, will be found referred to in the arguments of the counsel and the opinion of Judge Allen.
    
    The cause was argued briefly by Camden, for the appellants, and by Robert Johnston, for the appellees, who referred to the case of Sayre against the same defendants, 10 Leigh 454, as decisive of the question. The Court afterwards directed another argument, when it was argued in writing by Camden, for the appellants, and the Attorney General, for the appellees.
    For the appellants:
    The appellants, in the Court below, brought an action of assumpsit against the defendants for work and labour, &c. The declaration is in the usual form; a demurrer to it however was sustained, and the suit dismissed, upon the ground, I presume, that no suit will lie against this corporation, composed of the Governor, Treasurer, Attorney General and Second Auditor, with power “ to sue and be sued, plead and be impleaded, and to hold lands and tenements, goods and chattels, and the same to sell, dispose of, or improve, in trust for the Commonwealth." See act of 1830-31, p. 153. The decision of this Court in the case of Sayre v. N. W. Turnpike Road, 10 Leigh 454, has given rise to the opinion that this corporation cannot be sued. I admit that, as a general rule, a sovereign State cannot be sued by an individual; and that the persons composing this corporation, are mere trustees for the Commonwealth. But where a State, by act of its Legislature, confers the power upon trustees to act for it, as a corporation for the purpose of executing some specific object, and in the execution thereof, to sue and be sued, I contend that, as a general rule, it is subject to the responsibilities of other corporations. It is now generally conceded that corporations may contract, and incur responsibilities, other than by their corporate seal, so that no objection of that kind can avail in the present case. But an objection has been made by the Attorney General, which requires notice; that is, that the 7th section of the act of incorporation authorizes the president and directors of the road to appoint a superintendent, and empowers the superintendent “ to make all contracts for the opening and construction of the road,” &c., and that, inasmuch as the declaration does not shew that the work and labour performed by the appellants for the appellees, was done under a contract made by the superintendent by virtue of said 7th section, that the demurrer, on that account, ought to have been sustained. In my opinion, there is nothing in this objection. The authority given under that section, is an enlargement of the general powers of the corporation, and not a restriction of them. At most, it was but directory. See Angell & Ames on Corporations 189; Bulkley v. Derby Fishing Co., 2 Conn. R. 252; Mechanics Bank of Alexandria v. Bank of Columbia, 5 Wheat. R. 326. In case this corporation could only contract by its superintendent, I contend that the objection cannot be made by a demurrer. The declaration should be in the usual form, and the objection, if good, would arise upon the trial.
    I apprehend that if the judgment upon the demurrer is to be sustained by this Court, it is by force of the decision in the case of Sayre v. The Northwestern Turnpike Company, before referred to. In order to ascertain the bearing of that case upon the present, it is necessary to ascertain what was involved in the case. The substance of the complaint was that the defendants, acting through their agents, so negligently, defectively and unskilfully planned and constructed their bridge on the line of their road over Middle Island creek, that by reason thereof the water running and flowing down said creek, removed and washed away the bridge from its site, against the saw mill and mill dam of the plaintiff, and destroyed the same. Although the declaration avers that the plaintiff had long before the erection of the bridge used and possessed said mill, &c., yet it does not aver that he had so used and enjoyed the same before the right of the defendants to erect the bridge accrued; or that he had the lawful right to so use and enjoy the same. The injury is not laid to have arisen from the direct negligent act of the agents of the defendants, but very remotely. The bridge was washed from its site, and carried by the water against the plaintiff’s mill.
    Having endeavoured to ascertain what was involved in the case, let us ascertain what was decided by the Court. It is to be regretted that the Court, in its decision, merely declares, that “ in this case ‘the’ action does not lie against the company composed of officers of the government, having no personal interest in it, or ¿R its concerns; and only acting as the organ of the Commonwealth, in effecting a great public improvement.” The substance of the decision was only that that action would not lie, without intimating that no action at all would lie against the company. It is humbly conceived that if that case is to be sustained at this day, that it cannot control the Courts upon cases not falling within its class. The Attorney General, who argued the case of Sayre, for the company, understood the Court as deciding it upon the principles of the case of the Plate Manufacturers v. Meredith, &c., 4 T. R. 794. This enables us to get at the reasons of the Court in deciding Sayre’s Case as it did ; and to my mind, removes all difficulty in the present case arising out of it. In the case of the Plate Manufacturers v. Meredith, &c., certain trustees were authorized to pave a street. Their agents raised it so high above its former level as to obstruct the entrance of the plaintiffs under an arch, to their warehouse. Lord Kenyon said, “It does not seem to me, that the commissioners acting under this act, have been guilty of any excess of jurisdiction. Some individuals suffer an inconvenience under all these acts of parliament, but the interest of individuals must give way to the accommodation of the public.” Buller, Judge, said, “If the thing complained of was lawful at the time, no action can be sustained against the party doing the act.” There are other cases more to the point. Sutton v. Clark, 6 Taunt. R. 29, was an action on the case against the trustees under a turnpike act. The road was liable, after heavy rains, to be flooded by the waters of a neighbouring brook; the brook by the direction of the trustees was diverted, in order to protect the road; and after passing over lands of others, it flowed upon the lands of the plaintiff, and was an injury to him, but unforeseen and consequential ; and it was held that the action would not lie. Boulton 
      v. Crowther, 9 Eng. C. L. R. 227, is an important anthority on this point. An English statute under which certain trustees acted, authorized them to “make, divert, alter and improve the course or path of any of the roads under their management, through or over any private lands, tendering and making satisfaction to the owners thereof, and persons interested therein, for damages they shall sustain thereby.” The plaintiff’s land was not taken, but injured, as was contended: and inasmuch as the act did not provide compensation for the consequential injury, it was insisted that the defendants were liable in an action at law therefor. The Court instructed the jury, that if they were of opinion that the trustees acted arbitrarily and oppressively, to find for the plaintiff, if otherwise, for the defendants. The jury found for the defendants, and the instruction was acquiesced in. The case of Lansing v. Smith, &c., 8 Cow. R. 146, and the case of Steel v. The Inland Lock Navigation Company, 2 Johns. R. 283, are very satisfactory upon this question. These authorities establish the principle that if private property is taken for public purposes, just compensation must be made; but where public corporations act for public purposes, without any excess of jurisdiction on their part, and the “ injury is remote and consequential, it is damnum absque injuria, and must be borne as a part of the price to be paid for the advantages of the social condition.” In such cases private or individual inconvenience must yield to benefits conferred upon the public. In Sayre’s Case a great public improvement was made by the public in the form of a corporation. Provision was made for compensation to individuals whose lands were taken for the purposes of the road, without indicating any intention of holding the public responsible for consequential damages or inconvenience to individuals. From the nature of things all public improvements cannot affect every one alike; but the remote evils must be borne, as well as the enjoyment of the benefits. To my mind the Court was governed by these principles in deciding Sayre’s Case. It is true that the sovereignty of the State by the act of incorporation is so far compromised as to permit the corporation to be sued; but there is nothing in the act to shew that it was to be sued for remote or consequential injuries ; but on the contrary, a manifest intention to exclude such responsibility, from the fact that direct and immediate damages are provided for. See 6th section of the act of incorporation. But whilst the clause to sue and be sued is not to be construed into an intention on the part of the Legislature to fix upon the corporation responsibilities not cast on other similar bodies, it is not to be rejected as an unmeaning and inoperative term; but on the contrary, it is to be regarded as an express right to sue the corporation for such causes as similar corporations are liable to be sued for. The present suit is to compel the corporation to make compensation for work and labour, necessary to enable it to carry out the very object of its creation. If this suit will not lie, it is to be exempt from all responsibility of the kind : which I cannot for a moment believe was the intention of the power that gave it an existence. We can see good reason for subjecting it to suits for legitimate responsibilities; and strong objections to a different course. By admitting the former, the party relies upon the funds of the corporation for satisfaction for his demand; but otherwise, the common treasury would be looked to: a thing, I apprehend, not contemplated when the law was passed.
    As to the question whether the Circuit Superior court of law and chancery of Harrison county had jurisdiction of the case, I think that if I have shewn that the corporation is subject to be sued as similar corporations are, for like responsibilities, that I also shew the jurisdiction of that Court; for the act of the 17th March 1837, p. 44, provides that suits against any corporation may be brought in the county where the cause of action arose. Now if this is a corporation subject to suits as other corporations are, it comes within the provisions of this law, unless there be some express statute making it otherwise. The act of the 5th of March 1846, p. 12, in my opinion, does not shew such exception, although the preamble declares that doubts had arisen as to the right to sue that corporation in any other Court, but the Courts of the City of Richmond. Yet there is no expression of opinion on the part of the Legislature that this corporation was not under the influence of the act of 1837; and it would seem that under the act of 1846, suits could now be brought in other Courts, but would immediately be transferred. If the Court erred in sustaining the demurrer, is not the judgment to be regarded as void ? And under the spirit of the act of 1846, was not the cause pending in the Harrison Circuit court at the time it passed ?
    For the appellees:
    
      Mr. Johnston, who is with me in this case, has referred the Court to Sayre v. N. W. Turnpike Co., 10 Leigh 454. The Court has requested another argument on this case, for the purpose of explaining the case of Sayre v. N. W. Turnpike Company, and of shewing the ground on which the case at bar may rest.
    If I understand the case of Sayre v. The N. W. Turnpike Company, it asserts that a public corporation executing the duties with which it is charged in good faith, and within the limits of its authority, is not responsible for damages not foreseen, and not provided for in the law creating the corporation.
    The principle intended to be asserted in that case is the principle of the Plate Glass Company v. Meredith, 4 T. R. 794, to which I ask the careful attention of the Court. I think the attentive consideration of the argument of counsel, and the opinion of the Judges in that case, will shew that it establishes, that where the' act creating a public corporation provides for payment of damages for certain injuries, and fails to provide for indirect and consequential injuries, then such indirect and consequential injuries are damnum absque injuria, provided the company has executed its work in good faith, and within the limits of its authority. I do not think this principle inconsistent with the provision of the constitution which forbids taking private property for public uses, without compensation. No property is taken. The act done by the public agent is lawful, but some unforeseen and consequential injury has arisen. The law has not authorized compensation for such unforeseen and consequential injury. It is purely accidental, and although it might not have happened if the public improvement had not been made, yet it would be difficult to give compensation for such accidents without throwing on the Commonwealth the burden of paying for damages caused by superhuman power.
    I will add that I argued Sayre's Case, and well recollect that it was understood the bridge and mill were destroyed by a flood.
    I leave to the consideration of the Court the question whether the case of Sayre rules the case at bar.
    I refer to Stevens v. Middlesex Canal, 12 Mass. 466, in a note to which the Court will find a reference to the cases sustaining Sayre's Case.
    I submit to the Court a view of the case at bar on which I think it should be sustained.
    The act incorporating the Northwestern Turnpike Company, is in the Sessions Acts of 1831-2, page 153.
    The 1st section constitutes the company with power to sue and be sued.
    The 7th section, page 156, authorizes the appointment of a superintendent, who is to make all contracts for opening and completing the road, but no such contract to be obligatory unless approved by the board.
    This is the only power given to contract, and this power is limited to the completion of the road.
    Again, the statute having provided the mode in which this corporation may contract, it must pursue that mode. The reason for adopting this mode is obvious. The corporation is composed of officers of government, whose official duties confine them to Richmond. It was therefore appropriate that the business should be transacted by an officer who might personally inspect and superintend the contracts, and make contracts, subject to the control of the board.
    The power to contract must be entirely different from the power of joint stock companies, or that of other public corporations. That corporations may be restrained in their mode of contracting, see Angell & Ames on Corporations 188. And the mode prescribed must be pursued. A contract made in any other mode, or for any other purpose, is void.
    It seems necessarily to follow, that any action against the company must be founded on a special contract made with the superintendent according to this law ; and the general assunvpsit, which may be sustained on usual contracts, cannot be maintained against this company.
    The particular mode of contracting lying at the foundation of the responsibility of the company, it was necessary it should be shewn in the declaration.
    
      
       See Supp. Rev. Code, ch. 104, p. 153.
    
   Allen, J.

The plaintiff instituted an action against the defendants in the Circuit court of Harrison, to recover for work done and materials provided for the company. After issue joined on the plea of non assumpsit, a general demurrer to the declaration was filed, which was sustained. No objection has been urged to the form of the declaration. But it is maintained, that as this company is composed of the Governor, and other officers of government, having no personal interest in its concerns, but acting merely as the organs of the Commonwealth in effecting a public improvement, no action he against it; and that, if liable to be sued at all, the Court in which the action was brought had no jurisdiction to render any judgment against it. It appears from the act of incorporation, that the officers of the company are mere trustees for the Commonwealth, and that the road was to be constructed entirely at the public expense. It is not pretended that an individual can maintain an action against the State, unless she consents to submit herself to the jurisdiction of the Courts; but this exemption the State may waive, and in fact has done so, by authorizing individuals to proceed against her in certain designated Courts for claims against her. When for her own convenience and to effect some specific object, she creates an agency, under a corporate name, and invests it with corporate powers, she may also subject it to the responsibilities of ordinary corporations. By the act incorporating this company, the Governor, Treasurer, Attorney General and Second Auditor, for the time being, and their successors, are constituted a body politic and corporate, with a corporate name, authorized to hold and dispose of property, to make contracts, and invested with power to sue and be sued, plead and be impleaded. These are the terms used in most, if not all acts of incorporation, whether for public or private purposes; and when adopted by the State in constituting a corporation to effect a purpose of her own, must receive a similar construction. Nor is there any thing in the act of incorporation which would indicate a different intention on the part of the Legislature. On the contrary, as it was foreseen that individuals might be aggrieved as soon as the company commenced operations, by the location of the road and the erection of bridges, buildings and other works necessary for the construction and preservation of the road, provision was made by the 5th section, authorizing the party aggrieved to institute proceedings in the County or Superior court where the land was situated, against the company to recover his damages. The existence of the company did not cease on the completion of the road; it is charged with the duty of preserving it; and to do so must employ labour, procure materials, and of course enter into contracts to effect these objects. Should controversies grow out of these proceedings, and individuals be aggrieved, considerations of justice as well as of convenience, required that a remedy should be afforded. This, it seems to me, has been done in the act of incorporation, by investing the company not only with power to sue, but the capacity to be sued. The question really is not whether any action will lie against this company, but whether, having regard to the objects of the corporation, the action will lie for the particular grievance complained of.

It was not decided in the case of Sayre v. The N. W. Turnpike Road, 10 Leigh 454, that no action will lie against this corporation; all that the case decided, was that the action would not lie against this company for the injury there complained of. The suit was brought to recover damages for a remote and consequential injury to the property of the plaintiff. The declaration averred, that owing to the defective construction of a bridge by the company, it fell, and was carried by the stream against the mill and dam of the plaintiff, whereby they were destroyed. The reasons which governed the Court, in holding that an action for such an injury could not be maintained against this company, are not given. The case was probably considered as falling under the influence of the cases of the Governor and Co. of the British Cast Plate Manufacturers v. Meredith, 4 T. R. 794; Boulton v. Crowther, 9 Eng. C. L. R. 227, and Lansing v. Smith, 8 Cow. R. 146; in which it was held that commissioners or trustees, acting under the authority of law, to effect a public improvement for public purposes, in which they have no direct private interest, and who do not exceed their jurisdiction, are not liable to an action for a consequential injury resulting from an act they are authorized , to do.

The present case is not of that character; it is founded upon contract, such as the company was necessarily authorized to make for the purpose of preserving the work committed to its charge; and there is nothing in the words or spirit of the law which exempts the company from such an action.

The jurisdiction of the Court of the county in which the cause of action arose is ascertained, when it is determined that the company is liable to be sued like other corporations, unless there be some express provision of law giving jurisdiction to some particular tribunal to the exclusion of all others. Nothing of the kind is found in the charter of incorporation. On the contrary, the 5th section, providing a speedy remedy for parties aggrieved by the location of the road, gives the jurisdiction to the Courts of the counties wherein the land was situated. In all other cases the provisions of the act of 17th March 1837, p. 44, will apply. That act provides, that in all actions or suits instituted against any corporation, process issued from the Court of the county or corporation where the cause of action arose shall be sufficient to compel appearance. The act applies to all corporations, and was in full force when this suit was instituted and when the judgment was pronounced.

By the act of March 5th, 1846, authority was given to institute suits against this and similar corporations, in the Courts at Richmond; and all suits then depending, or thereafter brought against them in other Courts, were directed to be transferred to the Courts above mentioned. But as this act passed after the judgment appealed from was pronounced, the correctness of that judgment must he tested by the previous laws. The act of 1846, however, would seem to contain a legislative recognition of the right to institute the suit in the county where the cause of action arose: For it merely denies to such Court the power to render a judgment; but treats the suit as a pending controversy, properly commenced, and directs it to be transferred to be proceeded in to final judgment. This transfer, which extends to all the papers and proceedings in the cause, is to be made by the Judge of the Court where the suit is pending, and is a matter with which this Court has nothing to do. When the cause goes back and is reinstated on the docket, the order to transfer may be made. I think the suit was well brought; and that the demurrer to the declaration should have been overruled.

The other Judges concurred in the opinion of Allen. J.

Judgment reversed, demurrer overruled, and cause remanded.  