American Print Works v. Lawrence

23 N.J.L. 9

• Court: Supreme Court of New Jersey
• Decided: October 15, 1850
• Status: Published

Opinions

The Chief Justice.

The question presented by the demurrer in this cause is not without embarrassment, arising, perhaps, not so much from the intrinsic difficulty of the question itself, as from the decisions which have been already made affecting it.

It is the undoubted duty of this court to give effect to the decision made in this cause by the Court of Errors. It is a duty equally clear, not to come in conflict with the decisions of the courts of a sister state on a question arising upon the construction of their own laws and the effect and operation of their own constitution. The plea heretofore pleaded in this case, and which was adjudged by the Court of Errors to be defective in substance, or any other plea presenting substantially the same defence, cannot be sustained by this court. The replication demurred to is unquestionably defective. The only question is, whether the plea now pleaded does present substantially the. same defence with that already overruled by the Court of Errors, or a defence inconsistent with the principles adopted by that court.

If, by the decision of the Court of Errors, the statute of the state of Hew York, upon which the defendant relies in his plea, was adjudged null and void, as a violation of the constitution of that state, then unquestionably those pleas are bad, and must be overruled. But tin's clearly was not the view of the learned judge by whom the opinion of that court was pronounced. He held, in opposition to the opinion of the court below, and to what was understood to be the decisions of the courts of Hew York, that the statute contained a grant of power; that the property destroyed by authority of the statute was destroyed- for public use; and that if it authorized the destruction of any property without providing compensation, it authorized the taking of private property for public use without compensation, and would therefore be unconstitutional and void. But he expressly held that the statute did not authorize the destruction of 'goods, but only the destruction of buildings, for which compensation had been provided by the statute. The statute, therefore, was not regarded as unconstitutional. If a different opinion was entertained by any member of the court, if it was considered that the statute did authorize a destruction of goods without compensation, and consequently was-so far void, the objection could affect the statute only pro tanto. So far as it provided compensation for property taken, the statute was constitutional and- valid. ■

The defendanc, therefore, in the destruction of the buildings, (which in its‘consequences involved the destruction of the plaintiff’s goods) acted under the authority of a constitutional and" valid law. The real ground of complaint is, that he exceeded the authority conferred by the statute, and thereby became a trespasser; that he not only destroyed buildings, which he might lawfully do, but also the plaintiff’s goods,.which were in the building, and which the statute gave him no authority to destroy.

The plea under consideration in the Court of Errors, and which was adjudged defective, did. not aver that there was any necessity for the destruction of the goods. For all that appeared upon the plea, they might have been removed before the building was'destroyed. The utmost that could be assumed was, that such necessity might be inferred. “ The very effort and force (said the learned judge, in- delivering the opinion,) required to destroy personal property-, which could be saved from conflagration- by any possibility, would be sufficient to-remove it; and save ■ it from destruction.” This defect the pleader has now attempted to remedy, and has averred that, to prevent the spread of the conflagration and the destruction of a large portion of the city, it was necessary to destroy the buildings, without waiting to remove the plaintiff’s goods; and that the goods were thereby necessarily destroyed. He relics obviously, for his justification, not upon the common law rif/ht of necessity, hut upon a necessity created by the exigency of the statute, and growing out of the performance of his duty as a public officer.

The counsel of the plaintiff insists that the statute not only constitutes in itself no justification for the act of the defendant, but that it can in no wise contribute to his defence. That although ho acted in the discharge of his duty as a public officer, in good faith upon a sudden and alarming emergency, under the sanction of a constitutional and valid law, and in the execution of that law, all this is irrelevant and immaterial to his defence. He insists that the defendant is thrown back for his justification exclusively upon the common law doctrine of necessity ; that he must show, in justification, that it was absolutely necessary to destroy the plaintiff’s goods to prevent the spread of the conflagration, and that the progress of the flames could not by possibility have been otherwise arrested. By his argument he carries the doctrine much farther, and insists that even this necessity will not avail the defendant, unless he shows that the act was done to protect his own property, not the property of others alone, from destruction. This position is most clearly erroneous. There is no such limitation of the common law right of necessity. If there be, and such is announced as the rule of law, there would be an end to all efficient efforts to arrest the progress of any conflagration. No men but those whose property was immediately in peril, and that the most imminent, Would ineur the hazard of an effort to check the flames.

The position of the counsel of the defence, as disclosed by his pleading, is that the statute of the state of New York, under which the defendant acted, was a constitutional and valid law; that it conferred upon the defendant an unquestionable right to destroy the buildings to arrest the progress of the flames; that for this purpose these buildings were destroyed by the defendant in the discharge of his duty as a public officer; that in the discharge of that duty, the exigency arose which rendered fhe destruction of the plaintiff’s goods inevitable, in order to arrest the progress of the conflagration.

■ I incline to think the defendant is right in his construction of the law. It is certainly not without its difficulties. But it is the only view which will enable us at once to give effect to the judgment of the superior tribunal, and at the same time prevent our coming into direct conflict with the express and repeated adjudications of the courts of a sister state, upon the construction of their own statute. This result cannot be too strongly deprecated. Aside from all considerations of courtesy, its evil influences upon the administration of justice and the rights of parties litigant are apparent.

I am of opinion that the demurrer should be sustained, and the plaintiff’s replication overruled, with costs.

The same order must be made in the ease of Hale v. Lawrence, upon the like pleadings.