The only question in this case is, whether an action will lie against a contractor, employed by the State, pursuant to law, to keep a portion of the canals in proper condition and repair, who neglects his duty, whereby the plaintiff sustains special damage.
It is a familiar doctrine, that, "when a corporation or individual is bound to repair a public highway or navigable river, they are liable to indictment for the neglect of their duty. (Per NELSON, J., in The People v. The Corporation ofAlbany (11 Wend., 539).
A navigable river is a public highway: our canals, open and free to all for navigation, upon payment of the toll fixed by law, as our turnpikes are, for travel upon like terms, are, I think, in every sense, public highways.
A failure to keep a public highway in repair by those who have assumed that duty from the State, so that it is unsafe to travel over, is a public nuisance, making the party bound *Page 390 to repair liable to indictment for the nuisance, and to an action at the suit of any one who has sustained special damage. There is no decision in our courts at war with these principles. (Lansing v. Smith, 8 Cow., 151; Smith v. Wright, 24 Barb., 306; Pierce v. Dart, 7 Cow., 609; Shepard v.Lincoln, 17 Wend., 250; 3 Chit. Cr. Law, 568, Perkins' ed. of 1841; Adsit v. Brady, 4 Hill, 630; Mayor of Lyme Regis v.Henly, 1 Bing. N.C., 222).
If there be exceptions to this general rule, as to the liability of one bound to repair, I think it rests with him who claims their existence to prove them.
I am not aware of any distinction as to such liability, whether the obligation to repair arises from prescription, rationetenure by act of parliament or otherwise.
In England, at common law, the general charge of repairing all highways is on the parishes through which they pass. (3 Chit. Cr. Law, 566.) But the duty may be devolved upon others. In this State, generally, commissioners of highways in towns are bound to the repair of highways, and it has been generally supposed that they were liable to an action when it was through their fault that the road was out of repair, and a party had thereby sustained special damage, though I admit that no action has yet been successful that I am aware of, for the reason that it has never yet been shown that the road was out of repair, and the damage occurred by their default, though actions based upon the assumption of their liability have not been uncommon. One of the justices of this court in an able opinion has lately denied the liability of commissioners of highways to a private action under any circumstances, but the case was not disposed of upon that ground; only two judges agreed with him to place the decision on that ground. (Garlinghouse v. Jacobs, 29 N.Y., 297.) Nice distinctions have been made as to such liability.
In Adsit v. Brady, supra, the broad rule is laid down, that "when an individual sustains an injury by the misfeasance or nonfeasance of a public officer, who acts or omits to act contrary to his duty, the law gives redress to the injured *Page 391 party by an action adapted to the nature of the case." (4 Hill, 632.)
This is a healthful rule, sound entirely in public policy, if as a rule of law it can be questioned. As a rule of law, as there applied, it has stood for nearly a quarter of a century, and I think should continue.
In West v. The Trustees of the Village of Brockport (16 N Y, 168, note), Mr. Justice SELDEN denies this doctrine, so far as it applies to public officers, insisting that the only remedy against them is by indictment, because they are officers. Being officers, "their contract is treated as made with the defendant alone, while that of the individual is deemed to be made with and to inure to the benefit of every person interested in its performance." (16 N.Y., 168.)
The portion of the opinion in the last case referring toAdsit v. Brady, was unnecessary to the decision of that case. The defendants in Weet v. The Village of Brockport were held liable for the special damage sustained, both for nonfeasance and malfeasance, the judge basing their liability upon their contract, express and implied, contained in their accepted charter.
In Fisk v. Dodge (38 Barb., 163), the Supreme Court decided directly against the last case, holding that an officer is liable for misfeasance or malfeasance, whereby a party sustains special damage, but that an individual contractor is not; and this was founded upon a prior decision in the eighth district to the same effect.
In my judgment, the decisions, irrespective of the reasons therefor, in Adsit v. Butler and in Weet v. The Village ofBrockport, are both right, and should be sustained. The latter decides this case.
But I cannot concur in the reasoning of the learned judge in the latter case, which makes distinctions where there is no real difference in principle.
The principle he derives from the English authorities, and in which he concurs, is, "that whenever an individual or a corporation, for a consideration received from the sovereign power, has become bound by covenant or agreement, either *Page 392 express or implied, to do certain things, such individual or corporation is liable, in case of neglect to perform such covenant, not only to a public prosecution by indictment, but to a private action at the suit of any person injured by such neglect. In all such cases, the contract made with the sovereign is deemed to inure to the benefit of every individual interested in its performance." (Id., 163.)
But, he says, except in cases of sheriffs, clerks, c., who receive a compensation from private parties, "the contract of the officer is treated as made with the government alone. The reason for the distinction appears to be that intimated by GOULD, J., inLane v. Cotton (4 Ld. Raym., 646), that the duties in the one case are imposed upon the officer for public purposes only, while in the other they are voluntarily assumed with a view to private advantage."
Is not the contract when there is no officer, "made with the government alone," in every case cited? Certainly.
But in the case of contract by government with a contractor, not with an officer, "it is deemed to inure to the benefit of every individual interested in its performance."
And why does not the contract with the officer "inure to the benefit of every individual interested in its performance?"
If Mr. Justice GOULD did assign the reason in Lane v.Cotton above stated (though I cannot find it as reported in 7 Ld. Raym., 646, on careful reading), it may have been well in 1701, when that case was decided; but now, in this age, I think I am safe in saying that offices in general are accepted because the incumbents suppose their worldly condition will thereby be improved, pecuniarily, socially, or otherwise.
As to the voluntary assumption by contract, or the imposition of certain duties upon an officer, does any one accept an office in this country involuntarily?
In truth, it seems to me there is no sound distinction whatever in the two cases. And in Lane v. Cotton, which was an action against the postmaster-general for the miscarriage of a package, which seems to have been lost by the negligence of an inferior officer responsible to the crown, not a *Page 393 mere clerk, HOLT, Ch. J., dissented from the judgment for defendant, and Mr. Justice POWYS held that an action lay against the subaltern, Breese, whose negligence caused the loss, hence the plaintiff was not without remedy; and that by the express words of the patent the defendant was not answerable "for the default of the inferior officers."
The same doctrine was afterwards held in Whitfield v. LordLe Desprurer (Cowp., 754), that the postmaster was not liable for a theft in the office committed by one of the clerks who gave security to the crown.
But Lord MANSFIELD, in giving the opinion of the court there, said, "as to an action in the case lying against the party really offending, there can be no doubt of it. If the man who receives a penny to carry the letters to the post-office loses any of them, he is answerable — so is the sorter in the business of his department — so is the postmaster for any business of his own." To the same effect is the language of Chief Justice BEST, who said: "Now I take it to be perfectly clear that if a public officer abuses his office, either by an act of omission or commission, and the consequence is an injury to an individual, an action lies against such officer. The instances of this are so numerous, that it would be a waste of time to refer to them." (Henly v. The Mayor of Lyme Regis, 5 Bing., 91; 15 Cr. Law, 383.) But I did not intend to cite authorities to support Adsit v. Brady. These are the authorities referred to, to impeach that case.
The same principle that gives relief against a contractor with the government, gives the like relief against an officer of government.
An officer really contracts with the government faithfully to discharge the duties of his office, and he usually adds an oath to that effect. He voluntarlly assumes the duties. The public, the individuals thereof, usually are more especially interested in the proper discharge of the duties than the government itself.
The principle on which the action is based in each case, against an officer or contractor with the government, is a broad principle of public policy, essential to the public welfare. *Page 394 The law presumes that an office is created for the benefit of the public.
It is admitted that sheriffs, clerks, c., are responsible to individuals for mal or nonfeasance, because it is said they receive specific compensation from the individuals for the specific service, and hence there may be said to be a contract for its proper performance. In fact there is no more a contract in such case, than if the clerk or sheriff were paid a salary, and either he received no fees, or received them for the State or county.
In both cases he acts under the law, which makes it his duty to render those services, in one case on certain prescribed terms, and in the other, unconditionally.
Suppose a county clerk received a salary and was entitled to no fees — a party presents to him a record to file in his office and to docket a judgment. He persistently refuses to do his duty by filing it, whereby the amount of a judgment is lost; a farm on which it would have been a lien is in the meantime sold and conveyed to a bona fide purchaser. I think there can be no doubt as to the liability of the clerk, though he received and was entitled to no fees. He violated his duty as an officer to the party's damage. How poor a compensation to him to say that the clerk may possibly be removed or indicted. Does that pay him for his loss? In fact, he is left without remedy. In the case at bar, according to the reasoning in Weet v. Brockport Trustees, the defendant is clearly liable, because his contract with the government "inures to the benefit of every one interested in its performance," but, if the defendant had assumed the same duties as superintendent — as an officer — he would have been under no liability to those whom his nonfeasance or his malfeasance would generally most injure, viz., the navigator of the canal.
Yet, each is employed by the same power, the government, and, according to law, paid by the same, and their duties are substantially the same, the only difference being in the mode of their appointment or employment. In one case the man who will agree, and give security therefor, to *Page 395 do the repairs at the lowest rate, is appointed or employed according to the statute. In the other, the one who secures the preference of a majority of the canal board is appointed and gives security. Each agrees to do his duty — the contractor in writing, the officer by implication and by his oath. Upon every principle of sound reason their liability to persons injured by their negligence should be the same.
Garlinghouse v. Jacobs is not in conflict in the decision, and may be distinguished in the reasoning of the judge from this case. Mr. Justice WRIGHT there insisted that commissioners of highways were in no case liable to a private action, because there is not that precision and certainty of duty that should make them responsible in a civil action for an omission to perform it; of themselves they are not supplied by law with the means, or with power to obtain them, "to make them discharge the duty under all circumstances." That "it will not do to say that they are thus liable when they happen accidentally to have funds at command to make repairs and omit to make them, and are not liable when without them." (Id., 309.)
It is not pretended that either of these objections has any force in the case at bar. The duty here was specific and clear, the means of the defendant ample; or if not ample, it was his own fault, of which he cannot take advantage.
But it is not perceived why the commissioners of highways should not be held liable for a neglect of duty when they have ample funds in their hands, and the injury to an individual occurs from their wrongful omission to use them, though they may not always have such funds. In other words I do not see why because a man cannot be convicted when he is innocent, that he should not be condemned when he is guilty.
Reason and public policy alike exempt judicial action from liability, in order to secure the perfect independence of the judiciary and for other controlling reasons. Exclusive of judicial action, every officer in the land, in my judgment, is responsible for a violation of his official duty, to him who sustains special damage thereby; a sound, healthful rule, *Page 396 imparting life and efficiency to officers and security to the public. Upon principle as well as under the authority of this court as declared in Weet v. Trustees of Brockport, this defendant is liable.
Having received a consideration from the sovereign power for performing a public duty, he is liable for a neglect to discharge that duty to the plaintiff, who has thereby sustained special damage.
The judgment should be affirmed.