# Board of Chosen Freeholders v. Jersey City, Hoboken & Paterson Street Railway Co. > Supreme Court of New Jersey · November 17, 1913 · 85 N.J.L. 179 URL: https://www.frixlaw.com/law-library/cases/8272620 ## Case - **Full name:** THE BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF HUDSON v. THE JERSEY CITY, HOBOKEN AND PATERSON STREET RAILWAY COMPANY - **Court:** Supreme Court of New Jersey - **Decided:** November 17, 1913 - **Citations:** 85 N.J.L. 179; 88 A. 1061; 1913 N.J. LEXIS 255 - **Precedential status:** Published - **Opinion:** Concurrence by White - **Judges:** Garrison, Gummere, White - **Cited by:** 3 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8272620 ## Opinion text White, J. (concurring). I am unable to agree that Dean v. Paterson, 38 Vroom 199 , controls this case. As to the doctrine of stare decisis, one thing is settled, and that is, that “The positive authority of a decision is co-extensive only with the facts upon which it is founded.” Reed v. Reed, 114 Mass. 372; Grimes v. Bryne, 2 Minn. 89 ; Southern Pacific Railway Co. v. Robinson, 132 Cal. 408 . In Dean v. Paterson a municipality laid an improved pavement, not because it was necessary (which so far as appears it was not), in order to keep the street in proper repair according to the requirements of then existing traffic conditions, but as an improvement to the neighborhood, and for the benefit of adjoining real estate by inviting increased future traffic; and when the municipality assessed such real estate for such benefit, an owner attempted to escape a portion of his assessment by setting up a contract by the trolley company (whose tracks were on the street) with the municipality to keep part of the street in repair. The decision of the court, as limited by these facts, was that the new pave- *185 merit under such circumstances was not a “repair” within the meaning ol the trolley company’s undertaking. That was entirely true, and to that extent the precedent is a proper subject for the application of the doctrine of stare decisis. But to hold that it decides that a new pavement is not a repair where in fact it is necessary in order to repair, is, as it seems to me, to give it an unwarranted extension. That question was not before the court and did not receive that “solemn argument and mature deliberation” which, according to Chancellor Kent, justifies the application of stare decisis. In the present case the new pavement is a repair. It is a repair because it is necessary in order adequately to repair. Traffic conditions have changed with the increase of population (doubtless largely induced by the installation of the trolley company’s service and certainly to its financial benefit) so that the old dirt road cannot be made to answer the proper requirements of the present traffic. To contend that the parties to the contract only intended its obligation to continue while the old dirt surfacing would suffice, is, of course, absurd. They both knew the change would come. The existence of the franchise grant was not limited to the proper life of the old dirt surfacing, nor was ihe continuation of the obligation which formed its consideration so limited. It is perfectly evident that they were intended to continue together. As this court said, in Moersdorf v. New York Telephone Co., 55 Vroom 747 , speaking of the grantee of a franchise: “To permit it to thus divorce the exercise of the franchise granted from the performance of the condition upon which it was granted, would, we think, be a plain violation, not only of the purpose, but also of the terms of the grant.” As I view it, therefore, where, as here, a trolley company has acquired its franchise from a municipality on condition that it keep a certain defined portion of the streets occupied by its tracks in proper repair for public traffic, and by reason of natural increase in population and traffic it has become necessary to abandon the old form of surfacing and to put down an improved or better form of pavement m order to *186 keep the street in such repair, the trolley company may he compelled to put down such improved pavement. This view has been adopted in Pennsylvania (Borough of McKeesport v. McKeesport Pass. R. W. Co., 158 Pa. 447 ), and in New York (Mayor, &c., of New York v. Harlem Bridge M. & F. R. W. Co., 186 N. Y. 304 ), and so far as I am able to find, is not in conflict with any decision in this state. I think it is controlling where a proper case exists and the proper ground is laid for its application. It is said that the only remedy is b3r mandamus, but I cannot think that this is true. In Rutherford v. Hudson River Traction Co., 44 Vroom 227 , the Supreme Court, held that mandamus was a remedy because of the public nature of the duty assumed, but I can see no reason wiry the contractual obligation may not also be enforced as such. This, it seems to me, is so because the assumption of the public duty by the trolley company does not relieve the municipality of the same public duty. Its officers may be indicted for its non-performance. It is no defence that someone else has contracted to perform this duty and that application for a mandamus has been made and has long been pending (during appeal) to compel the performance of that contract. The proper convenience of the public is superior to such excuses however well founded. The public is entitled to use its highway today and to look to its servants to have it in fit condition for such immediate use. The trolley company made its contract with full knowledge of this fact. It would, as it seems to me, be a strange doctrine which would hold the officers of a municipality up to indictment for failure to beep a highway in repair, and then would relieve the trolle3r company from liability under its contract to do so, if such officers in order to escape indictment went ahead and, after proper notice, made the repair because the trolley company refused to do it. I cannot think the municipality is bound, under pain of' forfeiture of its rights, to sit still while the public suffers unbearable inconvenience from an impassable street, until an application for a mandamus has been led by the defaulting *187 trolley company a leisurely round or so through the courts. I think a contractual interest remains in the municipality in the performance by the trolley company of the contract, and that there is no good reason why, after proper notice and default, it may not enforce the obligation as other contracts between other contractors are ordinarily enforced, viz., by doing the work and recovering the proper cost as damages for a breach. The real trouble in the case at bar, as it seems to me, was in the failure of the municipality to notify the trolley company of the conditions and to call upon it to perform its contract to repair. Instead of doing this it went ahead and put down an improved pavement of its own selection, at its own price, and without opportunity to the trolley company to make its own contract for its portion at a price satisfactory to it and of proper materials of its selection. Clearly, the municipality could not do this and expect the trolley company to pay the cost. That, the contract did not authorize. I concur, therefore, in an affirmance of the judgment of the Supreme Court, but not upon the ground (stare decisis) assigned by the learned trial judge therefor. I am authorized to state that Mr. Justice Minturn concurs in these views. For affirmance — The Chief Justice, Garrison, Swayze, Trenchaeb, Parker, Minturn, Kalisch, Congdon, White, Terhune, JIeppenheimee, JJ. 11. For reversal — Vredenburgh, J. 1. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8272620. Public record. Not legal advice.