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wit, the selection of the local trustees, and was no referendum, and the members of the the ordering and raising of moneys for board of education were in all cases to be maintenance of the schools), arbitrary ex- elected by the people, the only local option ceptions have been made from the general being as to the number of members that applicancy of articles 6 and 7.

should constitute the board. P. L. 1900, p. In § 230 we find the declaration that "all 217, SS 85, 86, etc. It was this discriminaschool districts shall hereafter be governed tion between school districts in municipalisolely by the provisions of this act,” and a ties divided into wards, and school districts general repealer of inconsistent provisions. in municipalitics not so divided, that was It is manifest, however, that this language held illusory and unconstitutional by this cannot have the effect of overriding special court in Lewis v. Board of Education, 66 N. saving clauses and provisos contained in the J. L. 582, 50 Atl. 346. Thus the effect of $ act itself. It cannot subject to the pro- 246 of the act of 1902, and of the proviso visions of article 6 or of article 7 any school of $ 250, in confirming a referendum theredistrict that is not within the descriptive tofore held under the act of 1900, is to perterms of those articles. Neither can any petuate the consequences of an unconstitudistrict, so far as the selection of members tional classification of school districts, in of the board of education and the ordering a limited number of localities that happen and raising of moneys for school support to have taken action under the void law are concerned, be governed by $ 244, and at prior to the enactment of the present one. the same time be governed by inconsistent For, under the present act, while a someprovisions contained in article 6 or in arti- wliat similar and perhaps identical referencle 7. In short, the language quoted from dum is open to city districts, subject to $ 250 must be construed as bringing all sone qualifications (P. L. 1902, p. 96, § 80), school districts within the provisions of this it is not open to districts that are situate in act, so far and so far only as those pro- townships, incorporated towns, and borvisions in terms apply to any district in oughs. The referendum contained in § 249 question.

is not identical, for it relates, not simply Two further clauses of this act require to the method of selecting the school board, specific mention at this point. In § 246 but to the powers of the board and the other there is a clause confirming all elections pruvisions regulating the management and or submissions to the voters of any school support of the schools. If the effect of $ district under the general school law of 246, in confirming the results of a previous 1900, of the question whether in such dis- referendum, was to lead to uniformity, it trict the board of education should be elect- night be supportedi. State, Tiger, Proseed by the people or otherwise, with the cutor, v. Common Pleas Court, 42 N. J. L. declaration that in every such district here- 631; State ex rel. Bumsted v. Govern, 47 N. after the board of education shall, if the J. L. 368, 1 Atl. 835, 48 N. J. L. 612, 9 Atl. people have voted in favor of an appointive 577. board, be appointed and organized under the Now, with respect to cities that are diprovisions of § 12 of this act, and, if the vided into wards, the confirmed referendum people have voted in favor of an electric does tend to uniformity, because by the act board, they shall be elected and organized of 1902 they are placed on the same basis under the provisions of $ 43 of this act. as cities not divided into wards; and the Section 246 at the same time confirms all circumstances of the referendum having elections for members of the board of edu- been employed prior to the adoption of the cation held pursuant to the act of 1900, and act of 1902 might be treated as immaterial. constitutes the members so elected as the This is on the assumption that the subjectboard of education of such school district a matter of the referendum was the same corporation, as if organized under § 48 of under the act of 1900 as under the act of the present act. Again, there is a proviso 1902,-a point we do not stop to critically appended to § 250 declaring "that this act examine. But with respect to townships, shall not repeal or affect the provisions of incorporated towns, and boroughs that are any general act which may have been or divided into wards, the effect of $ 246 is to which may hereafter be accepted by a vote produce diversity. For those divided into of the people in any city or school district wards that have heretofore employed the in this state.” Now, under the act of 1900 referendum must have an appointive school (P. L. 1900, pp. 206, 207, $$ 45, 46), a ref- board if they have so voted, whereas town. erendum upon the question whether the ships, incorporated towns, and boroughs school board should be elected or appointed that have no wards, and those that have was granted to every municipality, irre- wards, but have heretofore voted for an elecspective of its form of incorporation, pro- tive board or did not vote at all upon the · vided it were divided into wards. In mu- question, must hereafter have elective nicipalities not divided into wards there'boards.


Returning to $ 33, it will be noticed that independently, and some parts are boroughs are thereby divided into two stitutional, all the provisions which are classes. The territory of boroughs hereto- thus dependent upon each other must fail.” fore incorporated, if already organized as a In the absence of any express declaration separate school district, is to so remain, to the contrary contained in the act itself, unless afterwards consolidated with adjoin the presumption is that the legislature ining territory. In boroughs hereafter intended any given enactment to be effective corporated, the people are not to have inde in its entirety. Towa L. Ins. Co. v. Eastern pendent school government, unless the State Mut. L. Ins. Co. 64 N. J. L. 340–346, 45 Atl. Superintendent of Public . Instruction and 762. In seeking the legislative intent, the the State Board of Education shall unite in presumption is against any mutilation of a 80 determining. If any rational basis statute, and the courts will resort to exists for this discrimination, it has not elimination only where an unconstitutional been pointed out. Again, $$ 81 and 82 provision is interjected into a statute otherseem to embody some arbitrary discrimina- wise valid, and is so independent and tions respecting the menibership of those separable that its removal will leave the boards of education that are subject to the constitutional features and purposes of the provisions of article 7. It is unnecessary, act substantially unaffected by the process. however, to spend time upon the point. We Assuming the act sub judice to be constimust not be understood as undertaking to tutional in its general features, we might, make an exhaustive disclosure of all the perliaps, say that so much of § 246 as special features in so voluminous a statute. undertakes to perpetuate the discriminaEnough has been said to denionstrate that tions that result from the employment of a the act adheres neither to the common-law referendum under a previous unconstituclassification of municipalities, nor to any tional statute might be exscinded as a mere legislative classification that is germane to excrescence. But the other discriminations the subject-matter. The classification of stand, we think, on an entirely different school districts is intricate, and not easily basis. Section 33, for instance, contains in followed. Plainly, however, numerous sub- and of itself nothing unconstitutional, unclasses are dealt with, and these, as a rule, less it be the provisions respecting boroughs. are distinguishable only by unimportant It purports to establish the bounds of the characteristics. As already appears, these several school districts of the state, and, minor classifications, as they may be called as already mentioned, it leaves the existing for convenience, are made the basis of dis- school districts to remain as they stood criminations in the act that have no reason prior to the passage of the act; no existing able pertinency to the needs or circum- school district being abolished or being stances of the districts thus set apart. The changed in respect to its boundaries. We classification is purely arbitrary. It was

are not prepared to say that the legislature very properly conceded by the learned at may not by special act create a school distorney general that in this respect the act trict, just as they create new municipalities, under consideration is in contravention of by the delimitation of a specified portion of the fundamental law.

the area of the state for that purpose. It is argued, bowever, that these unconsti- What may be done by specific description tutional features may be treated as excres- may be done by reference to other legislation cences upon the general scheme of the act, or by reference to the existing status.

The and may be totally disregarded, leaving the unconstitutionality of the present law statute in its main features to remain. Up- arises, not from the mode in which the on this question we adhere to the declara- bounds of the several school districts are tion of Mr. Justice Depue, afterwards Chief pointed out in 33, but from the mode in Justice, speaking for this court, in Johnson which the act elsewhere makes discriminav. State, 59 N. 1. L. 535, 539, 38 L. R. A. tions between different school districts, 373, 37 Atl. 949, 950: "It is undoubtedly with respect to the management and supelementary law that the same statute may port of the public schools therein, on be in part constitutional and in part un- grounds of distinction that render the act constitutional, and, if the parts are wholly local and special. Moreover, if § 33 were independent of each other, that which is unconstitutional, in enacting that each constitutional may stand, and that which is township, city, and incorporated town shall unconstitutional will be rejected; but, if the be a separate school district, while at the different parts of the act are so intimately same tinie providing that nothing in the connected with, and dependent upon, each section should be construed as abolishing or other as to warrant a belief that the legisla. changing the boundaries of any existing ture intended them as a whole, and that if school district, how can it be said that it is all could not be carried into effect the legis- thc proriso which contains the unconstilature would not have passed the residue'tutional feature ? The proviso establishes nothing, enacts nothing. It is merely a , in § 250 “that all school districts shall heretotal or partial negation of what is con- after be governed solely by the provisions of tained in the earlier part of the section. If this act,” even if we could ignore the second we were to strike out the proviso, we should proviso, which saves the provisions of any be giving to the former part of the section general act theretofore accepted by vote of a meaning that the legislature has in the the people in any city or school district. saine breath declared it was not to have. Supposing a district to be made up in part Manifestly, we should be exercising the of city territory and in part of township functions of a legislature, not of a court. territory, by what provision of the act is it And if we should attempt to eliminate any to be governed..? Is it by article 6, which portion of the section, by what process of applies to city school districts, or by article reasoning could we come to the conclusion 7, which applies to township school disthat the legislature considered the second tricts? It is impossible to ascribe to the proviso--the negative part of the section- legislature such an intent; equally imposless important than the affirmative portion. sible to suppose that they contemplated The proviso has a wider scope than all that that one set of regulations should apply to precedes it, since it saves from the operation one portion of the school district, and anof the enacting clauses all school districts other set to the remaining portion. existing de facto at the passage of the act,- Our attention is called to a supplement that is to say, the entire territory of the approved March 2, 1903 (P. L. p. 22), by state. If, therefore, any part of g 33 can which $8 244 and 250 are amended. Under be treated as comparatively insignificant, it Allison v. Corker, 67 N. J. L. 596, 60 L. R. would be the enacting clauses, and this A. 564, 52 Atl. 362, the amendments, so far would nullify the entire section. Were this as they go, may relieve the act of unconstidone, we should still have the de facto tutionality. This could have no effect upon school districts as they stood at the passage the present decision, however, for this case of the act, some of them coterminous with arose before the passage of the supplement. the bounds of cities, townships, incorporated The effect of the supplement is to strike out towns, or boroughs, and a remaining group the second proviso of g 250, and thereby to not coterminous with any municipality, eliminate one feature which seems to conbeing either made up of a portion or one tribute to render the act unconstitutional. municipality, or portions of two or more But $ 244, as amended, while conferring municipalities, or comprising the whole of upon the board of education in any school one municipality and a portion of another. district which comprises a municipality and Thien we find article 6 prescribing a code for a portion of an adjoining municipality or city school districts; article 7, a code for municipalities the same powers and duties township, incorporated town, and borough provided in article 7 of the act of 1902, still sciiool districts; and § 244, applying espe- retains that feature which perpetuates the cially to those districts which comprise a former method of selecting the boards of municipality and a portion of an adjoining education and of raising money for the municipality, so far as the selection of mem- school support. Little seems to be gained bers of the board of education and the order in the direction of generality by subjecting ing and raising of school moneys are con- composite districts to the provisions of cerned. The very presence of $ 244 in this article 7, for the result is, in the case of a act shows that the provisions of articles 6 school district comprising a city and a and 7 were not intended to apply to com- portion of an adjoining township, that the posite districts. If, therefore, we could district would be governed by the township even eliminate $ 244 as unconstitutional, it code, although the greater part of its would leave the districts therein described territory might be within the city. out of the act, unless we could give to the For these resasons, the judgment of the other portions of the act a meaning that the Supreme Court must be reversed, and the legislature did not ascribe to them. Nor is proceedings under review be set aside, with the matter much bettered by the declaration costs.


his lot in such a manner as to endanger

his neighbor's wall is bound to notify huo v.

of the manner and extent of the excavation, M. SUMMERFIELD & Wife, Appts. so as to enable him to take proper measures (131 N. C. 352, 133 N. C. 325.)

to protect the wall from injury.

On Rehearing. One about to excavate the soil of 2. A lot owner cannot relieve himself


NOTE,--For a case very similar to the one above, and in harmony with it, holding that

the employment of an independent contractor to make an excavation upon a lot in mere prosand Gildersleeve v. Hammond, 33 L. R. A. 46. As to liability for caving of neighbor's land

from liability for injury to an adjoining Bonaparte v. Wiseman, 89 Md. 12, 44 L. building through the negligent excavation R. A. 482, 42 Atl. 918; Wiswall v. Brinson, of his own lot by letting the work to an in- 32 N. C. (10 Ired. L.) 554. dependent contractor, if, by reason of the depth to which the excavation is to be car

The employer cannot relieve himself of liaried, it might reasonably be anticipated that bility by letting the work to an independent injury would probably occur from the prose-contractor, where the direct or probable efcution of the work unless reasonable care fect of performance of the work contracted was exercised.

for will be injury to a third person if rea(November 23, 1902.)

sonable care is omitted in the performance APPEAL by defendants from a judgment of the work.

Southern Ohio R. Co. v. Morey, 47 Ohio County in favor of plaintiff in an action St. 207, 7 L. R. A. 701, 24 N. E. 269; Carbrought to recover damages for injuries to man v. Steubenville & I. R. Co. 4 Ohio St. plaintiff's building by negligently excavating 399; 16 Am. & Eng. Enc. Law, 2d ed. p. defendants' lot. Affirmed.

196; Woodman v. Metropolitan R. Co. 149 The facts are stated in the opinions.

Mass. 335, 4 L. R. A. 213, 14 Am. St. Rep. Messrs. Winston & Faller, for appel- 427, 21 N. E. 482; Bouer v. Peate, L. R. lants:

1 Q. B. Div. 321; Dillon v. Hunt, 105 Mo. The owner of soil has the right to remove 154, 24 Am. St. Rep. 374, 16 S. W. 516; the same up to his boundary line.

Gorham v. Gro88, 125 Mass. 232, 28 Am. Cooley, Torts, $ 595; Dorrity v. Rapp, 72 Rep. 234; Palmer v. Lincoln, 5 Neb. 136, N. Y. 308.

25 Am. Rep. 470; St. Paul Water Co. v. After notice is given of the intention to ex. Ware, 16 Wall. 576, 21 L. ed. 488. cavate, it is the duty of the other fellow

Notice of the nature of the proposed to shore.

work should be given. Lasala v. Holbrook, 4 Paige, 169, 25 Am.

Shafer v. Wilson, 44 Md. 281; Lasala Dec. 524; Tunstall v. Christian, 80 Va. 1, v. Holbrook, 4 Paige, 169, 25 Am. Dec. 524 ; 56 Am. Rep. 581; Hammond v. Schiff, 100 Bonaparte v. Wiseman, 89 Md. 12, 44 L. R. N. C. 161, 5 S. E. 753; Radcliff v. Brooklyn, A. 482, 42 Atl. 918; Beard v. Murphy, 37 4 N. Y. 200, 53 Am. Dec. 357; Schultz v. Vt. 101, 86 Am. Dec. 693; 12 Am. & Eng. Byers, 53 N. J. L. 442, 13 L. R. A. 570, 26 Enc. Law, p. 937; Charless v. Rankin, 22 Am. St. Rep. 435, 22 Atl. 514; Larson v. Mo. 566, 66 Am. Dec. 642; Spohn v. Dives, Metropolitan Street R. Co. 110 Mo. 234, 16174 Pa. 474, 34 Atl. 192; 18 Am. & Eng. L. R. A. 332, 32 Am. St. Rep. 439, 19 S. W. Enc. Law, 2d ed. p. 549. 416.

The owner of soil is not liable for injury Clark, J., delivered the opinion of the done by an independent contractor in remov- court: ing a wall.

This is an action for damages caused by Engel v. Eureka Club, 137 N. Y. 100, 33 depriving the soil under plaintiff's wall, oi Am. St. Rep. 692, 32 N. E. 1052; Washb. its lateral support, by negligence of the deEasements, § 15, p. 444; 16 Am. & Eng. Enc. fendant while excavating for a new buildLaw, 2d ed. p. 201.

In such cases the servants who do the ing on an adjoining lot. The right to laterdamage are not the landowners; but the al support has been before this court in independent contractors.

Hammond v. Schiff, 100 N. C. 161, 6 S. E. 16 Am. & Eng. Enc. Law, 2d ed. p. 192; 753, and the whole subject is discussed in Casement v. Brown, 148 U. S. 617, 37 L. ed. the very full and elaborate notes to Larson 582, 13 Sup. Ct. Rep. 672; Wiswall v. Brin- v. Metropolitan Street R. Co. 33 Am. St. son, 32 N. C. ( 10 Ired. L.) 554.

Rep. 446, 447 [110 Mo. 234, 16 L. R. A. The degree of care in these cases is not 330, 19 S. W. 416]. Another full considerasuch as an owner is required to exercise.

tion may be found in Jones, Easements, $$ Charless v. Rankin, 22 Mo. 566, 66 Am. 585-631. There was evidence that the deDec. 642.

fendant made his excavation 2 feet deeper Messrs. Boone, Bryant, & Biggs, for than the bottom of the foundation of the appellee:

plaintiff's wall, causing it to crack, and The court's charge as to independent con- otherwise injuring the plaintiff's building. tractor was correct.

There was counter evidence, and the jury, imity to a neighbor's house does not relieve | by reason of excavations on one's own land the proprietor from liability for injury to the generally, see Schultz V. Byers, 13 L. R. A. neighbor's building, see Bonaparte v. Wiseman, 569, and note; Larson v. Metropolitan Street 44 L. R. A. 482, with footnote on exceptions R. Co. 16 L. R. A. 330 ; Parke v. Seattle, 20 L. to rule of nonliability for acts of independent R. A. 68 ; Cabot v. Kingman, 33 L. R. A. 45 ; contractors.

as triors of the fact, found a verdict for the | 470, 19 S. W. 416. The true rule deducible plaintiff, and assessed his damages at $225. from the authorities seems to be that while

The exceptions presented on the appeal are the adjacent proprietor cannot impair the very numerous, and were very fully and lateral support of the soil in its natural conably argued here, as doubtless they also dition, but is not required to give support were below. After careful consideration, we to the artificial burden of a wall or buildfind no material error. The only new point, ing superimposed upon the soil, yet he must or propositinn not heretofore decided, and not dig in a negligent manner, to the inthe point perhaps most pressed on the argu jury of that wall or building; and it is neg. inent, is the following instruction, to which ligence to excavate by the side of the neighthe defendant excepted: “While there is bor's wall, and especially to excavate deepevidence that the plaintiff knew that the er than the foundation of that wall, without defendant was going to excavate and build, giving the owner of the wall notice of that for she testified to that herself, still the de- intention, that he may underpin or shore up fendant owed to her the duty, which is not his wall, or relieve it of any extra weight on an unreasonable one, to tell her of the ex- the floors, and the excavating party should tent of his proposed plan, so she might adopt dig out the soil in sections, at a time so measures for self-protection, if she chose as to give the owner of the building oppor. to do so; and the court charges you there tunity to protect it, and not expose the is no evidence that he gave proper notice to whole wall to pressure at once. The defend the plaintiff on the line above indicated. ants did not give any notice of the nature To give this notice involves no expense to of their proposed excavation, and the evithe proprietor, and affords opportunity to dence justified the jury in finding them guilthe adjoining owner to protect his rights, ty of negligence. for improvements made by one proprietor Upon the whole case, substantial justice may be attended with disastrous results, appears to have been done, and we find no even when prosecuted by competent work- error requiring a new trial. men.” We see nothing unreasonable or er- Affirmed. roneous in this instruction. So far from giving such notice, when the plaintiff sent over A petition for rehearing having been filed, an employee who said to the male defendav!, Montgomery, J., on November 10, 1903, “Mrs. Davis says please protect her wall; handed down the following additional opinto dig it out in sections,” he replied, “Iion: know my business. Let her attend to her One of the questions presented by this apbusiness.” And when, in her anxiety about peal is a most important one, and that the safety of her building, the plaintiff sent question is whether or not the owner of a over another person to ask of the defend- city lot is liable for an injury done to an adant "not to hurt her wall,” asking that the joining proprietor's brick wall through the work might be prosecuted in such manner negligence of an independent contractor in as not to endanger her building, the defend-excavating for the purpose of building a ant very ungallantly sent the lady back wall against and alongside the adjoining word “to go to the devil.” The action is proprietor's wall, and where the excavation not for the defendant's rude speeches, it is extended below the foundation of the wall of true; but certainly after these messages the adjoining proprietor. There was evifrom the plaintiff, showing her anxiety to dence offered on the trial tending to show protect her wall, he at least owed it to her, that the excavating which the jury found as his honor charged, to give her notice of was the cause of the injury to the plaintiff's the manner and depth of his proposed exca- wall was done by the defendant himself, vations. If informed in that respect, she and from that evidence the jury might have might have placed supports under her wall, found that the injury was caused by the or removed weights from the floors, or oth direct and active agency of the defendant erwise protected her property, or, if plain himself. But for the purposes of this dis. tiff's plans seemed an illegal invasion of cussion it will be assumed that the contracther rights, she might, if so advised by coun. or performed the work. For what negligent sel learned in the law, have sought pro-acts of an independent contractor, employed tection by an application for an injunction. to do work entirely under his own control, The defendant's failure to give such notice which have resulted in injury to third perand information was, under the circum- sons, the employer may be liable, is a substances, as injurious to the plaintiff as the ject that has often been before the courts. manner of his refusal was wanting in credit The principle appertaining to that relation to himself. Jones, Easements, $ 610, Spohn in respect to such liability is that, when v. Dives, 174 Pa. 474, 34 Atl. 192; Larson work is performed by a competent contractv. Metropolitan Street R. Co. 110 Mo. 234, or under an agreement which imposed upon 16 L. R. A. 330, 33 Am. St. Rep., at page' him complete control of such persons as he

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