Collopy v. Newark Eye and Ear Infirmary

Hei-ier, J.

(dissenting). We are concerned here with first principles, the basic elements of the division of the powers of the government “among three distinct branches, the legislative, executive, and judicial,” 1947 State Constitution, Art. Ill, par. 1, each supreme within its own allotted sphere according to the inherent policy of the plan, a postulate not open to doubt by reason of the specific provision that “No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution”—a principle of representative government designed to secure essential liberty and justice against the excesses of arbitrary power.

The common law of England has a constitutional basis in our jurisprudence. It was provided in the State Constitution of 1776, Section XXII, “That the common law of England, as well as so much of the statute law, as have been heretofore practiced in this colony, shall still remain in force, until they shall be altered by a future law of the legislature; such parts only excepted, as are repugnant to the rights and privileges contained in this charter; * * The 1844 Constitution ordained, Article X, Section I, that “The common law and statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitation, or be altered or repealed by the legislature.” And the 1947 Constitution, Article XI, Section I, paragraph 3, declares that “All law, statutory and otherwise, all rules and regulations of administrative bodies and all rules of courts in force at the time this *49 Constitution or any Article thereof takes effect shall remain in full force until they expire or are superseded, altered or repealed by this Constitution or otherwise.”

A provision such as the last is deemed inclusive of the common law. Stout v. Keyes, 2 Dougl, Mich., 184 (Sup. Ct., 1st Cir. 1845). As there said, it is “a general principle, that, upon a change of government, laws in force continue until changed or abrogated.” In view of the constitutional history, there can be no doubt of the meaning here. See also Ray v. Sweeney, 14 Bush., Ky., 1 (Ct. App. 1878). Of this, more hereafter.

While adaptable to modern social needs and the complexities of an expanding society, the fundamental principles of the common law remain constituent elements of our law save as modified or superseded by the legislative process. This, by force of the constitutional mandate. And legislation is and has been in New Jersey the exclusive province of the Legislature, the elected branch of the government. “The legislative power shall be vested in a Senate and General Assembly.” 1947 Constitution, Art. IY, Sec. I, par. 1; 1844 Constitution, Art. IY, Sec. I, par. 1; 1776 Constitution, Arts. Y, YI. See Heise v. Earle, 134 N. J. Eq. 393 (E. & A. 1944). The common law and the statutes have equal force, except as the former may be superseded by the latter or may run counter to the Constitution or the genius and spirit of our political institutions.

The constitutional judicial power is basically adjudicative, for the protection of public and private rights and interests under the law, and to that end to expound and interpret and apply the laws. The courts declare and effectuate the applicable principles of the common law not superseded by statute or the Constitution itself. The modification of common-law rules of liability comes within the legislative domain. McQuigan v. Delaware, L. W. R. Co., 129 N. Y. 50 , 29 N. E. 235 , 14 L. R. A. 466 (Ct. App. 1891). There, the question involved was the existence of judicial power to compel the' plaintiff in a personal injury action *50 to submit his person to examination before trial. Denying the power, absent enabling legislation, the court said:

“® * * It is very clear that the power is not a part of the recognized and customary jurisdiction of courts of law or equity. The doctrine that courts have an inherent jurisdiction to mould the proceedings to meet new conditions and exigencies is true, but in a limited sense. They cannot, under cover of procedure or to accomplish justice in a particular case, invade recognized rights of person or property. No court, we suppose, can abrogate an established rule of evidence, as, for example, the rule that hearsay evidence is inadmissible, or the rule of the common law that parties shall not be witnesses, or that interest disqualifies. They may apply existing rules to new circumstances. Nor is it, we conceive, within the power of the court to create remedies unknown to the common law, or institute a procedure not according to the course of the common law. It is most important that courts should proceed under the sanction of an orderly and regulated jurisdiction, and that as little as possible should be left to the discretion of a judge. * * * We think the assumption by the court of this jurisdiction, in the absence of statute authority, would be an arbitrary extension of its powers.”

And the Minnesota Supreme Court, Mr. Justice Mitchell speaking, declared:

“® * * It is undoubtedly true that many of the doctrines of the common law had their origin in social or political conditions which have in whole or in part ceased to exist. But this fact alone will not usually justify courts in holding that these doctrines, when once thoroughly established, have been abrogated, any more than it would justify them in holding that a statute had been abrogated because the reason for its enactment had ceased. Any such rule would leave the body of the common law very much emasculated; as, for example, that pertaining to real estate. While, undoubtedly, the common law consists of a body of principles applicable to new instances as they arise, and not of inflexible cast-iron rules, yet where the rules of the common law have become unsuited to changed conditions, political, social, or economic, it is the province of the legislature, and not of the courts, to modify them.” In re Hulett’s Estate, 66 Minn. 327 , 69 N. W. 31 , 34 L. R. A. 384 (Sup. Ct. 1896).

The ultimate sovereignty is in the people, from whom springs all legitimate authority; and the legislative power is the authority vested in their elected representatives to *51 make laws, and to alter and repeal them. From the first the colonists in America claimed the benefit and protection of the common law; and they claimed as well the benefit of such statutes as from time to time had been enacted in modification of this body of rules; and when the difficulties with the home government arose, it was a source of immense moral power to the colonists that they were able to show that the rights they claimed were conferred by the common law, and that the king and Parliament were seeking to deprive them of the common birthright of Englishmen. Cooley’s Constitutional Limitations (8ih ed.), pp. 74, 81,183. The colonists, “upon their emigration from the mother country, brought with them to this state the common law of England, so far is it was applicable to their condition and circumstances here.” Bloomfield v. Brown, 67 R. I. 452, 25 A. 2d 354 , 141 A. L. R. 170 (Sup. Ct. 1942).

It is the general rule that where the English common law has been incorporated in the state’s jurisprudence, its basic principles thereby adopted, save as modified or overruled by statute, are subject only to constitutional restraints, the inherent limitations of the state’s political institutions, and the state’s exercise of the legislative power in the mode ordained by the Constitution. The cases are cited in E. B. & A. C. Whiting Co. v. City of Burlington, 106 Vt. 446 , 175 A. 35 (Sup. Ct. 1934). Said Chief Justice Chipman:

■ «* * * it ig from tllig source) the common iaW) that we derive rules and maxims not only for the construction of our statutes, but of the constitution itself; and, with the limitation expressed, it is the rule of property and the security of our rights; and furnishes to the Courts, in all eases, civil and criminal, a rule of decision. (Italics are ours.) The Courts can no more deprive a person, prosecuted for a crime, of a common law right, than they can deprive him of a statute or constitutional right; modes of practice merely they may alter, for the more safe and easy attainment of the ends of justice, so that they do not infringe any essential right.” State v. Parker, 1 D. Chip. Vt. 298, 300, 6 Am. Dec. 735 (Sup. Ct. 1814).

In Vermont, the common law was adopted by statute; and “a rule of decision” means “the law of this state,” the “foundation of our jurisprudence, and, except as modified *52 or repealed by statute, its rules and principles determine the rights of, and prescribe rules of conduct for, all persons, and such rules and principles are to be followed and applied by our courts in all cases to which they are applicable.” E. B. & A. C. Whiting Co. v. City of Burlington, supra. And see Commonwealth v. York, 9 Metc., Mass., 93, 110 (Sup. Jud. Ct. 1845); Horace Waters & Co. v. Gerard, 189 N. Y. 302 , 82 N. E. 143 , 24 L. R. A., N. S., 958 (Ct. App. 1907); Friend v. Childs Dining Hall Co., 231 Mass. 65 , 120 N. E. 407 , 5 A. L. R. 1100 (Sup. Jud. Ct. 1918); Brahmey v. Rollins, 87 N. H. 290, 179 A. 186 , 119 A. L. R. 8 (Sup. Ct. 1935); Strout v. Burgess, 144 Me. 263 , 68 A. 2d 241 , 12 A. L. R. 2d 939 (Sup. Jud. Ct. 1949).

Under the Maryland Constitution, in this regard not unlike our own, the holding was that intervention by a corespondent in a divorce suit in order to protect his reputation is not allowable either at common law or in chancery, nor in Maryland for want of statutory sanction. Said the Court of Appeals:

“* * * While there is considerable force in the co-respondent’s argument, it is an argument which should be directed to the Legislature, rather than to the Judiciary of the State. This court cannot enact legislation, but can only administer justice according to existing law.” Lickle v. Boone, 187 Md. 579 , 51 A. 2d, 162 , 170 A. L. R. 156 (Ct. App. 1947).

See also Leland v. Leland, 319 Ill. 426 , 150 N. E. 270 (Sup. Ct. 1925).

The Missouri Supreme Court has held that any change in the common-law rule confining the “dying declaration” hearsay-rule exception to criminal prosecutions for felonious homicide “should be made by the legislature, the law-enacting branch of government, rather than by the judiciary, the law-interpreting branch.” Cummings v. Illinois Central R. Co., 364 Mo. 868 , 269 S. W. 2d 111 , 47 A. L. R. 2d 513 (Sup. Ct. 1954). It was there pointed out that Dean Wigmore, protesting that the limitations on the admissibility of dying declarations to homicide cases “are heresies of the *53 last century, which have not even the sanction of antiquity,” nevertheless advocated that the needed changes be accomplished by legislative action. Wigmore on Evidence (3d ed.), § 1436.

And changes in “common-law fundamentals” cannot be made to rest “upon an inference of the gossamer texture of mere conjecture, as distinguished from implication”; courts “will give full effect to legislative intent to effect such alterations, but the intention must be at least reasonably clear.” Kemerer v. State Farm Mutual Auto Insurance Co., 201 Minn. 239 , 276 N. W. 228 , 114 A. L. R. 173 (Sup. Ct. 1937). It was held that the statute there under review was not clear for the reason that “against the backdrop of common law and equity [it] takes on unmistakably the color and displays the substance of a mere change in procedural, rather than substantive, law”; and it is to be presumed that, in enacting a statute, whether civil or criminal in nature, the legislature “did not intend to make any alteration in the common law, unless the language used naturally and necessarily leads to that conclusion”; the “intent to alter [the common law]” must be “clearly expressed.” Bloomfield v. Brown, supra.

This has long been the rule in New Jersey. A statute in derogation of the common law is to be strictly construed. Sinnickson v. Johnsons, 17 N. J. L. 129 (Sup. Ct. 1839); State v. Court of Common Pleas, 1 N. J. 14 (1948). A statute “* * * which is claimed to impose a duty or establish a right which was not recognized by the common law will be strictly interpreted to avoid such asserted change.” Carlo v. Okonite-Callender Cable Co., 3 N. J. 253 (1949).

In England, where the Parliament exercises sovereign authority and its expressed will is the final law, the rule is the same. The essential principle is thus expressed in Attorney General v. Todmorden Borough Council (1937), 4 A. E. L. R. 588, Goddard, J., for the King’s Bench Division:

*54 “* * * Many people, however, may think that the time has come when it is desirable to reconsider this question of the immunity of the council, an immunity which exists at common law. Although the great virtue of the common law is that it can be moulded and developed by the judges so as to be fitted to the requirements, and to the changing requirements, of modern life, with respect either to commerce or to habits of life or to other social matters, yet, where a rule of law has become fixed by decision, it is not open to judges to-day to alter the law in this respect, which has always been the law from its development, and the remedies that are to be found in the legislation.”

Upon what reason can the rule be otherwise in ISTew Jersey? The rationale of the majority opinion is that “in recent years many of our judges have pointedly suggested that sound concepts of right, justice and morality require outright rejection of the immunity”; “It may perhaps be that when D’Amato was rendered in 1925 it accurately represented the then prevailing notions of public policy,” but “times and circumstances have changed and we do not believe that it faithfully represents current notions of rightness and fairness”; and State v. Culver, 23 N. J. 495, 503 (1957) is cited in support of the thesis that the term “otherwise” in Art. XI, Sec. I, par. 3 of the 1947 Constitution includes “not only legislative alterations but also alterations “by the processes of change inherent in the common law/ ” These considerations all involve obvious questions of policy within the exclusive province of the Legislature.

That the principles of the substantive common law integrated into our jurisprudence are, by the imperative command of the Constitution, subject to modification or repeal only by the exercise of the legislative process was affirmed by this court as late as 1954 in Taneian v. Meghrigian, 15 N. J. 267 (1954).

The immunity of charities from liability for negligence as pleaded here rests largely on the generally accepted principle that a trust fund cannot be rendered liable for breaches of trust by the trustees; this, on the ground that if the trust fund were used to satisfy the damages suffered by recipients of the charity through the negligence of the *55 agents or servants of the charity, the fund would be diverted to purposes not within the charitable intention of the founders and patrons of the charity, and thus the benevolent object would be subverted. The common good and welfare is deemed the better served by the preservation of the charitable trust fund than by its diversion to the making of compensation for injury to beneficiaries attending the operation of the charity. This is a substantive principle of public policy firmly established in New Jersey, and throughout the country, such in quality as to render its judicial abrogation an

intrusion upon the legislative province in disregard of the separation of powers made the basis of our constitutional system of government. D’Amato v. Orange Memorial Hospital, 101 N. J. L. 61 (E. & A. 1924); Boeckel v. Orange Memorial Hospital, 108 N. J. L. 453 (Sup. Ct. 1932), affirmed 110 N. J. L. 509 (E. & A. 1933). Compare Simmons v. Wiley M. E. Church, 112 N. J. L. 129 (E. & A. 1934). See also Roosen v. Peter Bent Brigham Hospital, 235 Mass. 66 , 126 N. E. 392 , 14 A. L. R. 563 (Sup. Jud. Ct. 1920); Foley v. Wesson Memorial Hospital, 246 Mass. 363 , 141 N. E. 113 (Sup. Jud. Ct. 1923). The principle has general acceptance, particularly as to hospitals of the private eleemosynary class, that is to say, institutions administering a public charity under private auspices. 10 Am. Jur., Chanties, §§ 144, 146, et seq.; 14 C. J. S. Chanties § 75.

In Feoffees of Heriot’s Hospital v. Ross, 12 Cl. & Fin. 507, 8 Eng. Rep. 1508 (1846), the basic doctrine was treated as an immemorial usage of the common law. There, a hospital supported by private charities for the benefit of poverty-stricken boys, among others, was sued for damages for refusing admission to a 16-year-old boy of the given class; and in dismissing the action, thereby reversing the lower court, the House of Lords, by Lord Cottenham, said:

“* * * It is obvious that it would be a direct violation, in all cases, of the purposes of a trust, if this could be done; for there is not any person who ever created a trust fund that provided for *56 payment out of it of damages to be recovered from those who had the management of the fund. * * *

* * * It would be in vain to search the records of this country for any judgment of a Court, directing trust funds to be applied to any purpose different from that for which they were originally given.”

And Lord Campbell, concurring, declared:

“* * * ^ doctrine so strange as the Court below has laid down in the present case, ought to have been supported by the highest authority. There is not any authority, not a single shred, here to support it. No foreign or constitutional writer can be referred to for such a purpose.”

This case was not expressly overruled in Mersey Docks Trustees v. Gibbs, XI H. L. C. 685, 11 Eng. Rep. 1500 (1866). As to such immunity, there would seem to be an obvious distinction between charitable institutions of the given class and public bodies created by statute, e. g., to provide toll roads and docks, not within the trust-fund principle.

Moreover, the principle here invoked has become embedded in our jurisprudence by the course of judicial decision; and, as an established rule of substantive policy constituting an integral part of the State’s common law, unmodified by legislative action, its alteration or repeal is now within the exclusive legislative province. In re Burtt’s Will, 353 Pa. 217 , 44 A. 2d 670 , 162 A. L. R. 1053 (Sup. Ct., Pa. 1945). The doctrine of stare decisis is grounded in the preeminent public policy of achieving uniformity, certainty and stability in the law, the first requisites of an ordered and just system of law defining the rights of person and of property and the correlative obligations and duties; and the course taken here is in disregard of this primary juridical principle. When persons have arranged their affairs on the faith of settled principles of law, it is not the just province of the judiciary to alter the governing rule retroactively and lay the consequent burden of loss upon those who could not have foreseen the change. Here, unlike the same course by the legislative process, this defendant and all other charities *57 similarly situated -will be required to respond in damages from which they were immune when the injury was sustained, a measure that would have unconstitutional implications were it taken by the Legislature. And there are two companion cases ruled by this adjudication.

“A change by statute is only for the future. A change by decision is retrospective, and makes the law at the time of the first decision as it is declared in the last decision, as to all transactions that can be reached by it.” Stockton v. Dundee Manufacturing Co., 22 N. J. Eq. 56 (Ch, 1871). Compare Swentusky v. Prudential Insurance Co. of America, 116 Conn. 526 , 165 A. 686 (Sup. Ct. Err. 1933), where Chief Justice Maltbie said:

“* * * [The unwritten] law can never be static but it must be everlastingly developing to meet the changing needs of a changing civilization. But if our system of law is to have stability and a measurable degree of certainty, its development must be an orderly process, an accretion to the body of principles which are the outgrowth of past precedents, reasoned out in pursuance of that method of thinking which is the essence of the common law. Merely because it seems to us unjust that a plaintiff situated as is the one before us should not recover, or that ‘social desirability’ dictates that she should, affords no sufficient basis upon which we may find liability. Unless the application and reasonable development of accepted principles of law justify that recovery, the remedy, if any, rests with the Legislature and not with the courts.”

In Connecticut, the common law was not adopted by the Constitution or statute. State v. Muolo, 118 Conn. 373 , 172 A. 875 (Sup. Ct. Err. 1934).

The immunity policy has had legislative notice; but there has been no adverse action. The House of Assembly adopted May 26, 1955 a bill providing that no hospital or similar charitable institution shall be exempt from liability for damages occasioned by its servants and agents, “except to the extent to which such damages shall amount to more than $10,000.00, together with interest and costs of suit,” effective January 1, 1956, “with respect to accidents occurring, and to causes of action arising therefrom, on or after January 1, 1956.” There was no action on the measure *58 by the Senate. And there was no action on another House bill introduced the same day, March 14, 1955, to condition the licensing of convalescent homes, private nursing homes and private hospitals on the provision of indemnity insurance coverage for such negligence of servants and agents “to the extent that such liability is imposed by law.” Thus, the Legislature considered the immunity policy and refused to modify the existing law.

And it goes without saying that the availability or procurement of indemnity insurance coverage cannot give rise to liability for negligence or operate as a waiver of the immunity based on the trust-fund doctrine, or where the rule of respondeat superior is not applicable to such institutions. Williams’ Adm’x. v. Church Home, 223 Ky. 355 , 3 S. W. 2d 753 , 62 A. L. R. 721 (Ct. App. 1928); Piper v. Epstein, 326 Ill. App. 400 , 62 N. E. 2d 139 (App. Ct. 1945); Greatrex v. Evangelical Deaconess Hospital, 261 Mich. 327 , 246 N. W. 137 , 86 A. L. R. 487 (Sup. Ct. 1933).

Art. XI, Sec. I, par. 3 of the 1947 Constitution is in substance the same as the earlier provision of the 1844 Constitution. All law, “statutory and otherwise,” then in force, “shall remain in full force until they expire or are superseded, altered or repealed by this Constitution or otherwise.” “Or otherwise” does not confer legislative power upon the courts; this is the exclusive function of the Legislature under Art. IV, Sec. I, par. 1. And the policy of continuing the immunity of charities from liability for negligence is now essentially legislative; it is not for the courts to say that, because of “changed times and circumstances,” available indemnity insurance, and so on, a policy that “may perhaps” have “accurately * * * represented [the] prevailing notions of public policy” when D’Amato was decided in 1925, is now contrary to “current notions of rightness and fairness.” In a word, the judicial power is exerted not to correct a judicial decision erroneous at the time it was made, but to effectuate a radical change of public policy toward charities to meet what the court conceives to be new *59 standards of right dealing—a course of action the Legislature itself has refused to take, presumably after due consideration, and a course contrary to the English concept of judicial power in relation to the common law and rules of law that have become “fixed by decision,” as declared in Attorney General v. Todmorden Borough Council, supra, decided in 1937.

The proceedings of the 1947 Constitutional Convention reveal only the submission of Amendment 23 to Proposal 1-1 of the Committee on Rights, Privileges, Amendments and Miscellaneous Provisions, offered in these words:

“Mr. President, this provision is wordy—an adaption of a wordy provision in the 1844 Constitution which, I might say, fell between the Committee on Rights and Privileges amd the Judiciary Committee. I think it’s just of a technical nature—continuing all laws—and is necessary to be inserted in this Schedule.”

The amendment was adopted without inquiry or debate, Vol. I, p, 682. Apparently, it is set out verbatim in Vol. II, p. 1047; the concluding words of the adopted draft, “* * * this Constitution or otherwise,” do not appear in the amendment as offered, and there is nothing in the recorded proceedings to indicate their source or intended meaning. There is no discernible difference in meaning. The 1844 Constitution continued the “common law” and “statute law” then in force until altered or repealed by the Legislature; and the new terms have the self-same connotation.

Whence comes, I repeat, the power of the court to declare a change in this substantive policy on what it conceives to be moral grounds? Conceding considerations pro and con, is not the preservation of such philanthropic trusts for the common good an understandable choice of policy? And is not its reason, assessed by current needs, the legislative province? We are not here concerned with the' correction of fundamental error in prior adjudications. The new measure is frankly avowed to be a change of basic policy to accord with “modern” views, a juristic concept of what is just and moral and socially desirable. Would it not be the more prudent course, for the salvation of our constitutional *60 system, the preserving of “the balance of the Constitution,” to adhere to the traditional judicial function and leave this essentially legislative question of policy to the popular assembly, the elected representatives of the people?

Said Hamilton, 78th number of the Federalist . (1 Federalist and Other Constitutional Papers 424) : “The interpretation of the laws is the proper and peculiar province of the courts”; “if they [the judges] should be disposed to exercise will instead of judgment, the consequence would equally be the substitution of their pleasure to that of the Legislative body.” And Chief Justice Marshall declared: “Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing.” Osborn v. Bank of the United States, 9 Wheat. 738, 866 , 6 L. Ed. 204 (1824).

I give full allegiance to the doctrine, of the essence of our organic law, that the common law must yield to the exigencies, conditions and circumstances of our modern society and political and economic institutions which have rendered it obsolete and utterly impracticable; and I realize that, as said by Justice Holmes, The Common Law, p. 35, “Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy,” and “the unconscious result of instinctive preferences and inarticulate convictions, but none the less traceable to views of public policy in the last analysis.” But there he speaks of “the paradox of form and substance in the development of the law”—“In form its growth is logical”; yet, on the other hand, “in substance the growth of the law is legislative.” This is our constitutional scheme; and the judiciary’s allotted sphere is to maintain the balance, just as it restrains excesses of power by the coordinate branches of the government.

I would refer to the eminent treatment lately given the basic principles by Judge Learned Hand in The Bill of Bights [Harvard University Law School, Oliver Wendell Holmes Lectures, 1958]' and by Professor Corwin in Court over Constitution (1957).

*61 And I would direct attention to the lately decided case of Knecht v. Saint Mary’s Hospital, 392 Pa. 75 (Sup. Ct. 1958), where the Pennsylvania Supreme Court, Chief Justice Jones speaking, again sustained the eleemosynary immunity principle as “firmly fixed in the law” of the State, so much so that a change in the doctrine “ought to be effected, not by the courts, but by the legislature, which is, of course, the ultimate tribunal to determine public policy.” Anri the Chief Justice stressed the injustice of making the abrogation of the rule retroactive.

I would affirm the judgment.