Clark v. City of Elizabeth

Collins, J.

(dissenting). Certain streets in the city of Elizabeth were depressed so as to carry them under two intersecting railroads. The relator owned lands, with buildings thereon, fronting on those streets. He sought a mandamus to compel the municipal authorities to make him an award of damages. The cause was heard upon a rule to show cause, as if on alternative mandamus, the parties stipulating that upon the decision of the rule the pleadings should be so moulded, under direction of the court, as to give either party the right to a writ of error.

The Supreme Court rendered this decision:

“Per Curiam.

“"We think the proper inference from all the circumstances of this case is that the grade of the streets was changed by the railroad companies under their chartered powers and in pursuance of their chartered duties, in order to render the highways safe and convenient for public use.

“For damages caused to abutting owners by such change of grade, the statutes do not seem to have imposed any legal liability upon the municipality in which the streets are located, and the mere fact that the city consented to the change is not enough to cast such liability upon it..

“ The prayer for mandamus will be denied, upon pleadings so framed as to carry out the stipulation of the parties.”

*586 The pleadings were framed under the stipulation, and consist of an alternative mandamus, a return thereto, a demurrer to the return and joinder thereon. Upon the resultant judgment in favor of the defendants this writ of error was brought.

The record discloses the following facts admitted by the demurrer:

The grades of the streets involved were established by ordinance of the city of Elizabeth on June 18th, 1856, and the streets were opened, worked and paved on the grades thus established. After the erection of relator’s buildings, the city, by resolutions receiving less than a three-fourths vote of the entire council, made separate contracts—one with the United New Jersey Railroad and Canal Company and the Pennsylvania Railroad Company, lessee, dated December 24th, 1890, supplemented December 10th, 1891, October 27th, 1892, and January 3d, 1893, and one with the Central Railroad Company of New Jersey, dated December 29th, 1890, supplemented October 27th, 1892, and December 30th, 1892. The contracts recited that they were made in pursuance of “An act to authorize any city of this state to enter into contracts with railroad companies whose roads enter their corporate limits, whereby said companies may relocate, change or elevate their railroads, and, when necessary for that purpose, to vacate, change the grades of or alter the lines of any streets or highways therein,” approved March 19th, 1874 {Rev., p. 944), and by virtue of all other powers and authority possessed by the parties or either of them for that purpose. They further recited that to elevate the grade, through the city, of the railroads respectively, and to vacate, alter the lines and change the grades of certain streets as thereinafter provided would secure greater safety to persons and property in the city and promote the interests thereof and increase the capacity of the railroad companies for transacting business. They provided for extensive changes in tracks and streets, involving vacation of some streets and depression of others. It was agreed that in order to provide undergrade crossings for pedestrians and *587 vehicles of all kinds the specified changes in grades of streets should be made by the railroad companies, or one of them, at their own cost. On August 15th, 1893, an ordinance was introduced in the city council and passed at the same meeting, wherein it was ordained that the grades of certain streets should be changed and established as specified—being in accordance with said contracts—provided that for the purpose of easing the approach of existing grades to the grades thereby established the streets at the head of the new grades should be depressed not exceeding one foot, and sloped therefrom for a distance of forty feet in either direction so as to form a gradual and easy ascent. By this ordinance the railroad companies were authorized and requested to change the grades of said streets according to the provisions.of the ordinance and on the terms and conditions stated in the contracts. The ordinance did not embrace all the streets the grades of which were changed under the contracts, but did include those in front of relator’s lands.

The relator pleads that at the time of the passage of the ordinance the city had powei’, under the provisions of its charter and the general public laws of this state, to change the grade of any street upon which any house or other building stood, and that the ordinance was passed in pursuance of such power; that in carrying out the provisions of said contracts it became and was necessary to cut down and lower the grade of the streets in front of his lands to the depth of eight feet, in such manner as to conform them to the new grades established by the ordinance, and that the streets were cut down accordingly, in the manner and by the persons mentioned in said contracts and in accordance therewith and with said ordinance; that damages thereby ensued to the relator and that it thereupon became the duty of the defendants to make him an award therefor.

The defendants, in their return, cite the city charter (Pamph. L. 1863, p. 109) and plead that the ordinance of August 15th, 1893, was passed for the purpose of expressing the consent *588 of the city to the plan formulated by the railroad companies for abolishing grade crossings, and could not impose any liability on the city, and that the changes in the grades of the streets were made by the railroad companies, in accordance with the ordinance and contracts, but under and by virtue of provisions in their charters cited. Pamph. L. 1832, p. 96, as to one company, and Pamph. L. 1831, p. 80, and Pamph. L. 1847, p. 128, as to the other.

When a statute or document speaks of changing a street grade the meaning of the words used must be determined by the context. Standing alone, such words are ambiguous. They may mean either making the actual change or effecting the legal change or both. ' For an actual change only are damages awarded under our statutes. In the case in hand it is admitted that the railroad companies contracted to make and did make the actual change. Their authority to do so under municipal consent is indisputable. Without such consent in a case of reasonable necessity they had power to make such change and were under obligation to use their power. Their charters are alike in this respect. The pertinent provision is as follows: “It shall be the duty of the said company to construct and keep in repair good and sufficient bridges or passages over or under the said railroad or roads where any public or other road shall cross the same, so that the passage of carriages, horses and cattle on said road shall not be impeded thereby.” One of these charters came before the Supreme Court in the case of Central Railroad Co. ads. State, 3 Vroom 229 , and Chief Justice Beasley said: “The duty prescribed is to keep, at all times and under all circumstances, the public highways, at the point where they cross the railroad, in a condition fit for safe and convenient use. In order to accomplish this end, the power to alter the grade of the road as public emergencies require so as to pass it, if necessary, under the track, must reside in the corporation.” For the changes of grade, therefore, the authority of the Contract act of 1874 was not needed, but as the general plan to *589 abolish grade crossings involved other things not within the power of the companies, it was proper to embrace all in the contracts. The whole subject thus came within the municipal consent and was put on á sure footing.

It is evident that the city’s ordinance of August 15th, 1893, was a mere adjunct to the contracts previously made. Probably no ordinance was necessary under the act of 1874, and it is difficult to see why one was passed at all unless as authority, in lieu of further supplemental contracts, for the making by the railroad companies of the slight changes specified in the proviso of the ordinance, at the head of the new grades. It cannot be successfully contended that this ordinance works á difference in the subject of the contracts and puts some of the depressed streets upon a legal basis different from the others. Whatever may have prompted the ordinance, it could not have been intended thereby to impose pecuniary liability upon the city or upon assessable property, for it was not an ordinance of the character of those devolving such a liability. In Elizabeth it is essential to the validity of an ordinance involving the expenditure of money that it be published in a newspaper printed and published or circulating in the city fop the space of two weeks, between a second and third reading. Pamph. L. 1863, p. 117, § 29. This ordinance was introduced and passed at the same meeting. The contracts upon which the ordinance was based must, under the act of 1874, be made by the “ proper municipal authorities.” Such authorities, under the charter of Elizabeth (Rev. Sup. 1872, Pamph. L., p. 1192, § 20), include as necessary factors three-fourths of the members of the entire council where a resolution or ordinance involves the expenditure of money. There was no such vote for these contracts. If there were any statute entailing on Elizabeth a liability in damages for a lawful change in street grades, the city would perhaps be estopped from pleading the invalidity of its municipal action as a reason for non-liability thereunder for a change actually made, but there can be no estoppel against *590 demonstrating, from the character of the municipal action, that such action was a mere assent to an actual change of grades by other corporations under lawful authority, and must have been so understood by all concerned. The. relator could not have relied, to his hurt, upon this ordinance. By its very terms the railroad companies were authorized and requested' to change the grades of the streets on the terms and conditions of the contracts. There is no ground for holding that, in doing the work, the railroad companies acted as agents of the city. The inference of the Supreme Court, therefore, is fully sustained.

If, however, this were doubtful, or if it could properly be inferred that the city, in legal contemplation, did change the grades, the judgment of the Supreme Court should nevertheless be affirmed.

Lawfully authorized changes by .municipal corporations in the grades of public highways involve no constitutional right of compensation to the owners of adjacent property. No right of compensation exists unless conferred by statute. Cooley Const. Lim. 542; Plum v. Morris Canal and Banking Co., 2 Stook. 256 ; Citizens’ Coach Co. v. Camden Morse Railroad Co., 6 Stew. Eq. 267, 276; Transportation Company v. Chicago, 99 U. S. 635 .

The charter of Elizabeth confers no right and imposes no liability in this regard, and a supplement (Pamph. L. 1864, p. 644, § 9) excepts that city from the provisions of the general law on the subject (Pamph. L. 1858, p. 415, now sections 70 to 75 of the Road act, Gen. Stat., p. 2820). This much is conceded in the opinion read for this court, but it is therein declared that authority for an award, collectible by assessment on property benefited, is conferred by “An act relating to the change of grade of streets in cities of this state,” approved May 7th, 1889 (Gen. Stat., p. 592), under which statute the alternative mandamus in this case was framed. I cannot assent to this view.

The act in terms applies only “ where a city has power to *591 change the grade of any street or part of a street upon which any house or other building stands or is erected.” I find in the charter of Elizabeth no express power to change a grade once established and worked. An earlier charter (Pamph. L. 1855, p. 229, § 21) gave power by ordinance to “regulate and determine the levels, grade and construction of streets.” Under this power the pleaded ordinance of 1856 must have been adopted. The revised charter (Pamph. L. 1863, p. 118, § 31, ¶ 7; Id., p. 121, § 31, ¶ 31 j Id., p. 145, § 92, ¶ 3) gives power to “ regulate, clean and keep in repair the streets,” to “level, grade, curb and pave, flag or gravel the sidewalks of the streets,” and to “cause any street or section of a street to be graded, graveled, paved, flagged, macadamized or otherwise improved and regulated.” But I find nothing more, except in a supplement of 1869 (Pamph. L., p. 1092, § 2) where power is given to “ establish grades or a system of grades for the streets or avenues in the city.” Perhaps a power of change may be implied from these provisions. Town of Lambertville v. Glevinger, 1 Vroom 53 . If there is no such charter power, express or implied, the act of 1889 is ineffective in Elizabeth unless it operates upon the power granted by the Railroad Contract act of 1874.

But granting such power, it is, in my opinion, more than doubtful if the act of 1889 can be applied in a city where there is no municipal liability for grade changes. It is an incomplete and imperfect statute, and can be given due effect only when applied to city charters imposing such a liability or to the Road act. The fair construction of the first section involves nothing more than a purpose to substitute for the remedy by action at law, bestowed by the Road act, one by municipal award. The second section regulates in all cases the mode of assessing benefits. The mischief the act was meant to remedy was that there were two methods of procedure recognized by the old law—one where a city’s charter provided for assessing and paying compensation for changes *592 of grade, and the other where the Road act alone gave a right to compensation. The remedy was to prescribe uniformity.

This is made evident by comparison:

BOAD ACT.

“70. That an action upon the case doth and shall lie in behalf of any person owning any house or other building standing and erected upon any street or highway, the grade whereof shall be, or shall have been altered by virtue of the ordinance, resolution or other proceeding of the legislative authority of any city, borough or town corporate in this state, to recover from the said city, borough or town corporate, all damages which such owner shall suffer by reason of altering any such grade.

* * * * * *

“72. That the foregoing provisions respecting grades shall not refer to any city, town or borough whose charter or any supplement thereto now existing, or which shall hereafter be passed, provides or shall provide for assessing and paying compensation to persons injured by the making of grades established or to he established.

“ 73. That the grade of no street, in any city or town which has been built on, shall be altered, unless by the consent of a majority of owners in interest of the lots fronting on the part proposed to be altered, nor without paying to the owners of such buildings the damages sustained by the alterations of such grade.”

ACT OF 1889.

“ 1. That where any city of this state has power to change the grade of any street or part of a street upon which any house or other building stands or is erected, it shall be lawful for the municipal authorities in any such city, through its proper officers, to make or cause to be made the proper award for damages, if any, ensuing or arising to the owner or owners of any such house or other building standing and erected upon any such street or part of a street, the' grade whereof is changed as aforesaid.

“2. That the damages mentioned in this act to be paid to such owner shall be assessed upon and paid by the lands and real estate benefited thereby, in proportion to the benefits received, and such damages shall be ascertained, estimated and assessed, and the amount thereof shall afterwards be justly and equitably assessed and apportioned upon the lands and real estate benefited thereby, by such municipal authorities, through its proper officers, as aforesaid.”

Contrast the words “ the proper award for damages, if any, ensuing or arising to the owner,” in the latter act, with the words “ an action * * * to recover * * * all damages which the owner shall suffer,” in the earlier act. In *593 case of a change in a street grade, damages—that is, compensation—ensue or arise to an owner by legislative provision, whereas damages—that is, injury—are suffered by the physical act of alteration whether compensation arise or not. That the contingency of non-liability was contemplated in the act of 1889 is shown by the use of the words “ if any ” and “ proper award.” Solution in any given case will depend upon the existence or non-existence of a legislative authority for compensation by which alone can be tested the “ propriety ” of an award. ■

The true conclusion, however, is that the act of 1889 has no relations at all to changes of grade resulting from the joint action of a city and a railroad company under the Contract act of 1874. It relates only to action taken for purely municipal purposes or where a city acts for the owners of the property affected.

The expression of the authority given by the act of 1874 to “ change the grades ” of streets includes power to make an actual change as well as to effect a legal change, and in either case the power is unlimited. The same section (73) of the Road act that gives damages for alteration of grades provides that the grade of no street in any city or town which has been built on shall be altered unless by consent of the majors ity of owners in interest of the lots fronting on the part proposed to be altered. In Read v. Camden, 25 Vroom 347 , where the Railroad Contract act of 1874 was upheld and declared to have an object highly beneficent, it was adjudged that this requirement of consent of landowners was abrogated as to contracts within the act of 1874. The provision for compensation where in force was likewise overridden. Later general statutes addressed simply to municipal action should not be held to apply to special powers conferred for public purposes. For example, an act passed now, providing that grades of streets should not be changed without consent of landowners, would have no more effect upon the powers of the act of 1874 than had the provisions of the previous act *594 of that purport held by this court to have been thereby superseded.

It is, of course, possible for a city, when contracting with a railroad company, under the act of 1874, to exact or afford compensation to landowners damaged by grade changes (Read v. Camden, ubi supra), but neither under that act nor any later statute is there legal obligation to do so.

It has been said that when a street grade has been officially established, and particularly when improvements have been thereafter made according to Such established grade, and it is afterwards changed, to the injury of abutting owners, there is a strong natural equity in their favor for compensation. Dill. Mun. Corp., § 995 b. This consideration should have been addressed to the municipal authorities of Elizabeth when they were making these contracts, or may be addressed to the legislature now. If now, after the railroads have been elevated and property has been adjusted to the new conditions, it can be demonstrated that some landowners have been made to suffer for the public benefit, it is within the legislative power to put the burden where it belongs. The city did, in these contracts, agree with the railroad companies to assume all legal liability, if any, for damages for the change of street grades. If it had been equitable to require the companies to pay the actual damages, we may presume that such payment would have been exacted. Whatever equity, therefore, exists is against the city.

In Shackelton v. Town of Guttenberg, 10 Vroom 660 , 665, Mr¡ Justice Dixon said, with reference to a just municipal indebtedness for which there was no legal means of payment: “Though the powers delegated for the payment of these debts may have proved inadequate, and it may be convenient and just that they should be made sufficient, yet, as we have seen, it is not within the scope of judicial authority to eke them out by dubious presumptions. Creditors whose rightful claims cannot be satisfied by their exercise must seek further aid from the legislature, on whose faith they may safely rely. The creditors of the state itself stand secure upon this basis.”

*595 So, in this case we ought not to eke out inadequate powers in order to enforce a “natural equity” against the public. If there be such an equity in this case, its accomplishment is a legislative function. The present proceeding will not accomplish it. An award of damages collectible only from assessments of benefits will be of little value to the relator. There,can hardly be any special benefit from the changes in grade per sese, and the general benefit arising from the abolition of a grade crossing of the railroads will not be assessable.

I shall vote to affirm this judgment.

I am authorized to say that Justices Garrison and Ludlow •and Judge Bogert concur in this opinion, and that Judge Vredenburgh interprets the act of 1889 as not applicable in Elizabeth.

For affirmance—Collins, Garrison, Ludlow, Bogert, Vredenburgh. 5.

For reversal—The Chancellor, Depue, Gummere, Van Syckel, Adams, Hendrickson, Nixon. 7.