
    GRAY against THE CITY OF BROOKLYN.
    
      Court of Appeals;
    
    
      September, 1869.
    Constitutional Law. — Liability of Municipal Corporations.—Implied Contract.
    Under the charter of Brooklyn, as amended in 1862, an action will not lie against the city for nonfeasance or misfeasance on the part of the public officers.
    The act (Laws of 1862, p. 203, § 39) amending the charter of the city of Brooklyn (Laws of 1854, p. 860, ch. 384), by exempting the city from liability for nonfeasance, &c., of city officers, is not unconstitutional as impairing the obligation of contracts, or as conflicting with section 3 of article VIII. of the Constitution of the State of New York, which provides that ah corporations may sue and be sued, as natural persons.
    That section of the Constitution was intended to confer on corporations the capacity to be .sued, not to define the cases in which suits may be maintained against them.
    The words “ this act,” in section 39 of the amendatory act (Laws of 1862, p. 203), must be construed as referring to the charter of 1854, as amended, and not merely to the amendatory act.
    That section was intended, not to divest persons affected thereby of their rights, but to change and limit their remedies.
    
      The implied contract which is deemed to arise out of the acceptance of a charter by a municipal corporation, is a contract between the city and the State, and not between the city and individuals; and is not “ impaired ” by a statute exempting from liability for torts.
    Appeal from a judgment.
    This action was brought by Daniel H. Gray, to recover damages for alleged negligence on the part of the defendants in constructing a sewer, whereby his premises were flooded. The injury was sustained after the passage of the act of 1862.
    The defense interposed was the amendment to the charter of the city of Brooklyn, quoted and discussed in the opinion.
    The complaint was dismissed after the plaintiff’s evidence was put in; and the plaintiff appealed to the general term, where the judgment was affirmed. At the general term, J. F. Barnard, J., delivering the opinion, it was held that the act was constitutional, and a good defense (see 50 Barb., 365).
    The plaintiff appealed to this court.
    
      Bernhard Hughes, for plaintiff, appellant.
    I. It is the duty of municipal corporations to preserve and keep in repair, works which they have constructed (Mills v. City of Brooklyn, 32 N. Y., 489, 499 ; Conrad v. Village of Ithaca, 16 N. Y., 158,169 ; Rochester White Lead Co. v. City of Rochester, 3 N. Y. [3 Comst.], 463, 468; Storrs v. City of Ithaca, 17 N. Y., 104; Hutson v. Mayor, &c. of N. Y., 9 N. Y. [5 Seld.] 163; Mayor, &c. of N. Y. v. Furze, 3 Hill, 612, 615, &c.).
    II. The law of 1862 (p. 203), does not exempt defendant from its corporate liability. 1. It is unconstitutional, because it applies to the city of Brooklyn only, and takes away a vested right. 2. It is not within the power of the legislature to exempt a municipal corporation from its legal liability, any more than it would be to exempt an individual. 3. It is not within the scope of the legitimate authority of the legislature to shield one city from its legal liability for wrongs done in its corporate capacity, and to hold all other municipal corporations responsible for negligence.
    III. The law of 1862 does not exempt defendant from its liability. Titles 4 and 5 refer to the act of 1862, and to no other act whatever (§ 39). Plaintiff’s claim was not only a common law but a constitutional right. The act of 1862 has not taken away that right, as it nowhere exempts the city of Brooklyn from its liability to keep its streets in repair. Statutes are to be construed in reference to principles of the common law (1 Kent Com., 510, 514). Where rights are infringed, fundamental principles overthrown, and when the system of the laws is departed from, the intention of the legislature must be expressed with irresistible clearness (People ex rel. Cunningham v. Roper, 35 N. Y., 629, 635; 2 Cranch, 290).
    IV. The act of 1862 is an act to amend an act to consolidate the cities of Brooklyn and Williamsburgh, passed April 17,1854. The act of 1854 imposes the duty of keeping streets in repair. This duty has not been repealed by the act of 1862, and the liability stands now as it did before the passage of the latter act.
    V. If the act of 1862 applies to the act of 1854, so as to exempt the city from such liability, the legislature can legalize fraud, trespass, larceny, and all other assaults upon life and property.
    VI. The act of 1862, pp. 199, 201, 203, introduces a gross confusion of authority, and gives no remedy, while it does a positive injury and takes away a vested right.
    VII. If the act has any application to this case, it is unconstitutional. The defendant, by accepting its charter, entered into an implied contract with the plaintiff to keep the streets in repair and indemnify him against its acts of negligence. When a corporation accepts a grant it is bound to perform its conditions (Conrad v. Village of Ithaca, 16 N. Y., 163, and cases there cited). Plaintiff’s rights vested under and by virtue of this implied contract, as well as the grant of the legislature to the defendant. The legislature can no more revoke, its grants than a donor his gifts when delivered (Sedgw. on Constitutional Law, 625, and cases there cited; People v. Platt, 17 Johns., 195, 213, 214; 4 Wheat., 514 ; 6 Cranch, 144,145). Such contracts are protected by the Constitution of the United States (U. S. Const., I., §10, subd. 11; Conrad v. Village of Ithaca, 16 N. Y., 163). The constitutional provision is designed to protect certain fixed private rights, whether express or implied (People ex rel. Cunningham v. Roper, 35 N. Y., 629, 639).
    •VIII. The act of 1862 violates the Constitution of the State of New York (Art. VIII., § 3). There is no power reserved in the Constitution enabling the legislature to exempt corporations from liability more than natural persons. AJI duties imposed upon a corporation raise an implied promise of performance.
    IX. No security to be furnished by individual officers of the corporation is provided by the act, and the responsibility is shifted from the principal to the agent, and no remedy is provided against the agent. Where the remedy fails, the right revives.
    X. Municipal corporations are to be held to the same responsibility as natural persons, and stand, in respect to grants made to them by the State, on the same footing as would an individual upon whom like special franchise had been conferred (Bailey v. Mayor, &c. of N. Y., 3 Hill, 531 ; N. Y. & New Haven R. R. Co. v. Schuyler, 34 N. Y., 30; People ex rel. McConvill v. Hills, 35 N. Y., 449, 452.
    XI. Remedies to enforce contracts are within the power of the legislature—the contracts themselves are not. The legislature cannot, by acting on the remedy, impair the obligation, of the contract (Morse v. Goold, 11 N. Y., [1 Kern.], 281; Bronson v. Kinzie, 1 How. U. S., 811). So long as a municipal corporation retains its corporate powers, the legislature cannot exempt it from liability (Chenango Bridge Co. v. Binghamton Bridge Co., 26 How. Pr., 126, 137).
    
    
      Jesse Johnson, for the defendant; respondent.—
    I. Section 39 is a part of the existing charter of the defendant, and applies to the liability sought to be imposed. The intention of the legislature in this re-forming of the city charter, clearly was to relieve the city from liability for neglect of duty by public officers elected under its provisions, or of their appointees. That the provision in question relates to the whole charter, and not merely to the amendatory act, is evident by reference to “Titles 4 and 5,” there being no such divisions in the amendatory act. Separate the provision from that to which it relates, and it has no meaning, while, considered in reference to the city charter, it is of great importance. The provision should be treated simply as an addendum to the original act, being part of an act “amendatory” thereof. All statutes in part materia are to be taken together1 as if they were one law (Rogers v. Bradshaw, 20 Johns., 735; McCartee v. Orphan Society, 9 Cow., 437; Rexford v. Knight, 15 Barb., 627; People v. Aichison, 7 How. Pr., 241; Turnpike Co. v. People, 9 Barb., 161; Smith's Com. on Stat. Law, 751, §§ 736, 739 ; 1 Dougl, 30 ; 1 Kent Com., 463, 464). The intention of the law-giver is to be deduced from a view of the whole statute, and the real intention will always prevail over the literal (1 Kent Com., 162; People v. Draper, 15 N. Y., 532 ; 15 Barb., 156). The design and object of the legislature are to be considered (Beebee v. Griffing, 14 N. Y. [4 Kern.), 235; Donaldson v. Wood, 22 Wend., 395; Turnpike Co. v. McKean, 6 Hill, 616; 10 Co., 57; 1 Pick., 105; 3 Bing., 
      193 ; 2 Roll., 137 ; Hob., 93 ; Dwar., 690, 696 ; Plowd., 205 ; 1 Show., 491; Bac. Abr., tit. Statutes, I., 5; Sir William Jones, 105. And see opinion in court below, 50 Barb,, 365).
    II. No obligation - of contract is impaired by this statute. 1. Plaintiff gave no consideration for the duty he seeks to impose. 2. Defendant exists as a legal body only by virtue of this charter. The receipt of it is the only consideration that raises the duty sought to be imposed, and the charter, including this section, was received before this action accrued.
    III. The sovereign power is never liable for nonfeasance or misfeasance in the performance of any governmental function. It is only when a special privilege or charter has been given to a community, that a duty is raised in consideration thereof, the breach of which becomes actionable (Conrad v. Village of Ithaca, 16 N. Y., 158, 163, 164; Welt v. Village of Brockport, and cases there cited, referred to in note to above decision ; Lorillard v. Town of Monroe, 11 N. Y. [1 Kern.], 392; People ex rel. Mygatt v. Supervisors of Chenango, Id., 563, 573; Morey v. Town of Newfane, 8 Barb., 645, 649, &e.) The receipt of a charter is a consideration for no obligation which, by its express terms, is excluded.
    IV. It cannot be claimed that the contract was fixed before the amendment in question. 1. The power of the legislature is unlimited over all subjects of legislation, except where restrained by the constitution. Any contract inuring to the benefit of plaintiff was subject to a reserved power of amendment, contained in the charter, and to a similar power in the constitution itself (Constitution, art. VIII., § 1; Darlington v. Mayor, &c., of N. Y., 31 N. Y., 164,181,182, quoting and approving Dartmouth College Case). 2. The liability in question is a common law liability, however derived, and the whole body of the common law is expressly made subject to alteration by the legislature (Constitution, art. I., §17).
    V. The provision (§ 39) is not in violation of the constitution, article VIII., § 3. 1. There is no liability on which to bring suit. 2. The last clause of section 3 merely clothes all corporations with capacity to sue and be sued, but. has no relation to the power of the legislature over the law which shall determine the suit when brought.
    ■VI. The provision does not leave the individual without remedy (see last clause of § 39), except where the injury occurs through the act of the officer in exercising a judicial duty; which, it is well settled, is 'damnum absque injuria (Mills v. City of Brooklyn, 32 N. Y., 489, 496, &c).
   By the Court.—Daniels, J.

Under the law as it existed before the act of 1862 was passed, the power to cause the streets and avenues of the city of Brooklyn to be graded, paved, and kept in repair, and from time to time regraded and repaved, was vested in the common council {Laws of 1854; p. 860, ch. 384, title 4, § 1). And, for the purpose of supplying the means of exercising that power, it was provided that the expenses of all such improvements should be assessed, and be a lien, upon the property benefited by them. This was sufficient, after the street in question had been graded, paved, and curbed under the authority thus conferred, to render it the duty of the common council to observe reasonable care and attention in keeping it in that condition. And a careless omission to perform that duty, through which an injury should result to a person, entitled to insist upon its observance, would be sufficient to maintain an action in his favor, in a court of justice, for the purpose of securing redress on account of the injury (Mayor of N. Y. v. Furze, 3 Hill, 612; Wilson v. Mayor, &c. of N. Y., 1 Den., 595; Lloyd v. Mayor, &c. of N. Y., 5 N. Y. [1 Seld.] 369 ; Mills v. City of Brooklyn, 32 N. Y. 489, 500).

But in the present case no such want of reasonable care and attention was shown on the part of the common council, for there was no evidence given on the trial tending to prove that this body had notice of the condition that the streets were in, or that by the exercise of proper diligence and circumspection it should have acquired knowledge of that condition. ,

Nothing like negligence on the part of the common council was, therefore, made to appear upon the trial of the cause.

Assuming, as, perhaps, that properly should be done, on account of the peculiar form given to the objection on which the motion for a nonsuit was granted, that negligence was shown on the part of the mayor and aldermen, in their omission to communicate to the common council the notice they had each of them received, which is certainly as far as this court can be justified in going under the evidence, then the question arises whether the action against the city should, on that account, have been maintained.

The difficulty in the way of doing that was created by the charter of the defendant (Laws of 1862, p. 203, §39).

By this section it is provided that the city itself “shall not be liable in damages for any nonfeasance or misfeasance on the part of the common council, or any officer of the city, or appointee of the common council, of any duty imposed upon them or either of them by the provisions of titles four and five of this act, or of any duty'enjoined upon them or any or either of them, as officers of government, by any other provision of this act, but the remedy of the party or parties aggrieved, for any such nonfeasance or misfeasance shall be by mandamus or other proceeding or action to compel the performance of the duty, or by other action against the members of the common council, officer or appointee, as the rights of such party or parties may by law admit if at all.”

The section was very imperfectly and inartistically drawn, but from the fact that the act containing it was an amendment of the act of 1854, which contained titles four and five, while no such titles were contained in the amendatory act, and that those titles included many of the duties imposed upon the common council and officers of the city, it must be presumed that when the legislature used the terms, “ this act,” in its reference to those titles, it intended to refer to them as they were contained in the act of 1854, as it would be with that of 1863 incorporated into it by the amendments then made. The object of the legislature is clear, and that was to exonerate the city from liability on account of the omission and misconduct of its officers, and to impose all the legal consequences of their acts directly upon the persons who might be guilty of such official misconduct.

And that object can be secured by no other construction of this section.

Construed in this manner, then, it includes the present action, for the real ground of the complaint, upon which it was founded, was that two of the officers of the city had omitted to perform the duties officially enjoined upon them.

The plaintiff claims, however, that he should have been permitted to have maintained his action even under this construction of that section, and several reasons have been urged in support of that position.

The validity of those reasons will now be examined.

It is clear that the plaintiff had no vested right against the city when the act containing this section took effect as a law.

It was enacted on March 37, 1863, and, except one section not requiring notice, it went into effect as a law immediately, while the injury to the plaintiff’s premises did not occur until the December following.

This section did not impair the obligation of a contract within the prohibition of the Constitution of the United States upon that subject.

For, even though an implied contract arose out of the acceptance of the act of 1854, that the powers conferred by it should be used and observed for the benefit and advantage of the city, it was not a contract with the plaintiff, but between the city and the State, by whose sovereign act the charter had been conferred.

As to the plaintiff, the obligation on the part of the city was that of a mere duty, and not that of a contract.

But even if it had been, or could be deemed a contract with the plaintiff,' still .the legislature had the power to change, modify, or amend it, without conflicting with the provision referred to in the Constitution of the United States. For the authority under which the act was passed retained that power over it in favor of the legislature.

This was done in express terms when the power to create corporations was provided for by the present Constitution of the State, article VIII., § 51 of Constitution of 1846.

The language used was explicit, that all general laws and special acts passed pursuant to that section might be altered from time to time or repealed. When the act of 1854 was passed, it was with this important qualification attached to it by the Constitution.

And that was clearly sufficient to empower the legislature to make the change effected in it, if that was deemed advisable and expedient under the circumstances.

But it is insisted that the alteration made is inconsistent with the right to sue corporations conferred by the last sentence of section 3 of article VIII. of the Constitution.

But that is manifestly an erroneous view of this section.

For it was no part of the intention of that provision to render corporations liable upon all causes of action, the same as natural persons were, but merely to provide that actions might be maintained against them the same as they could against natural persons, provided the legal causes for doing so were found to exist.

It was to confer the capacity of being sued, not to define the cases in which suits might be maintained against them.

The right of action in cases of this kind arises out of the duty conferred by the statute in favor of the public, and that might have been qualified at the time of the enactment of the statute, precisely as it has been by this amendment.

The legislature had the power to determine the form in which the franchises and obligations of the municipal government should be conferred upon the city, and under the provision made by the Constitution, it did not part with the power by not exercising it at that time.

•This section of the act of 1862 was not intended to divest the persons who might be affected by it of their right to redress, but to change and limit their remedies for injuries sustained by them.

And that power has always been deemed to be within the constitutional province of the legislature (Matter of N. Y. Protestant School, 31 N. Y., 574-585). The redress may not always prove to be as entirely adequate to the injury as an action directly against the corporation itself; but even if that be. conceded, it will not justify the conclusion that the act is in conflict with the Constitution on that account.

In theory the act places the responsibility for the wrongs of municipal officials where they justly belong —upon the persons by whose misconduct they may be produced.

It should have proceeded a step further than it has gone, for the purpose of securing complete redress to those entitled to demand it, by requiring the officials of the city, before they enter upon the duties of their offices, to give ample security for the payment of the judgments recovered against them under its provisions.

The judgment should be affirmed.

Woodruff, J. (Dissenting).

It is not denied, and probably can not be denied, that by virtue of its charter and the act to consolidate the cities of Brooklyn and Williamsburgh, passed in 1854 (Laws of 1854, ch. 384), it became and was the duty of the defendant to keep the streets of the city in repair, and that for failure to do so, the defendant was liable to a party who was injured thereby. The plaintiff in this action was nonsuited at the trial, on the sole ground that by the act of March 27, 1862 (Laws of 1862, ch. 53, § 39, p. 203), the defendants are relieved from any such responsibility.

By the act last referred to, it is provided that “ the city of Brooklyn shall not be liable in damages for any nonfeasance or misfeasance of the common council or any officer of the city, or appointee of the common council, of any duty imposed upon them, or any or either of them, by the provisions of articles four and five of this act, or of any other duty enjoined upon them or any or either of them, as officers of the government, by any other provisions of this act; but the remedy of the party or parties aggrieved, for any such misfeasance or nonfeasance, shall be by mandamus or other proceeding or action to compel the performance of the duty, or by other action against the members of the common council, officer or appointee, as the right of such party or parties may by law admit if at all.”

The claim, therefore, made on behalf of the defendant, is that the city is not liable for the damages sustained by an individual from its omission to perform its duty to keep the streets in repair; but that if, by the rules of law, any or either of its officers are liable therefor, redress may be had, otherwise the party is remediless. An intention to produce such results is not to be imputed to the legislature, unless the terms of the enactment very clearly indicate such design. Against such a construction it is insisted that the liability against which it was intended to protect the city, is expressly limited to damages for nonfeasance or misfeasance of the common council or city officers, in the discharge of duties imposed or enjoined by the act of 1862 itself: that the expression “ this act ” clearly so limits the operation of the amendment, and that duties and responsibilities previously existing under the charter are not affected. Without inquiring whether the statute of 1862 should be thus strictly construed, or whether, on the other hand, the words “this act ” may not mean the act which was thereby amended, another objection to the construction contended for seems to me well founded. The terms of the act of 1862 do not purport to exonerate the city from any absolute duty which, by force of the pre-existing laws, rested upon it as a municipal corporation, nor from the payment of damages if such duty be not performed. Granting, for the purposes of this discussion, that they are, by force of the act of 1862, relieved of responsibility for the misfeasance or nonfeasance of the common council, or of other officers in the discharge of any duty imposed upon them by any provision of the charter, there is no declaration that the city shall not be bound to the discharge of every duty imposed upon it as a municipal corporation, and be liable for a failure to perform it.

And to my mind there is nothing in the act in question indicating such an intention. Neither the terms nor the reason of the act import such an exoneration.

True, municipal corporations ex necessitate act by officers and agents, but absolute duties to act, and to perform, rest upon them, nevertheless, as they do upon individuals, and they are responsible for their failure, as a corporation, in the discharge of such duties.

Among other duties to which they are bound by strict legal obligations, is their duty to pay their debts, duly contracted. And yet, in the raising of money for the purpose, and in their application of the money when raised, they must act through their officers and agents. I apprehend that, if an action were brought against the city of Brooklyn, upon one of its bonds duly issued, the binding character of which was not questioned, counsel would not interpose a defense under the statute now in question, averring that the breach of duty or of obligation consisted in the non-payment of the money according to the tenor of the bond, and this arose from the failure of the officers or the common council to raise or appropriate the money, or the omission of their treasurer to perform his duty to pay it over.

There is abundant scope for the operation of the statute, according to its terms, without extending it to a liability not mentioned in it. In the discharge of the actual duties devolved upon the officers of a municipal corporation, they may be guilty of misfeasance and negligence, to the ^injury of third persons, and the question has more than once arisen whether the corporation is liable therefor.

Sometimes such officers have been deemed to be agents of the corporation, and the latter liable on the principle of respondeat superior. Cases of this kind may be within the design of the statute, assuming, as before assumed, that the terms “this act” refer to the charter.

For example, the corporation may assume the duty to construct a sewer within a street of the city. For that purpose the proper officer or agent is directed to perform the work ; in the act of performance he does something or omits something which he ought not te have done or omitted, and which works an injury.

This statute would be satisfied by holding that the injured party must look to him and not to the city for compensation. Suppose, moreover, that by reason of the construction of the sewer, the street should be or soon become in a dangerous condition. The general duty to keep the streets in repair would still rest upon the city, and its legal obligations would not be satisfied until by some means those repairs were made.

In short, the statute may be held to apply to those cases in which the corporation is sought to be charged for the misfeasance or nonfeasance of the officers as its agents. It by no means follows that there is not a clear liability of the corporation for a failure to perform a duty which rests upon it by law.

On this ground the judgment should be reversed.

" Mason, J., concurred with Woodruff, J., as to construction of the act, but thought, in addition, that, in terms, the section in question was limited to the act of 1862.

All the other judges concurred in the opinion of Daniels, J.

Judgment affirmed, with costs.  