Imágenes de páginas

The true test to be applied in determining whether an ordinance which directs the making of a municipal improvement is ministerial or judicial in its character, seems first to have been pointed out, so far as our decisions are concerned, by Chief Justice Green, speaking for the supreme court, in the case of Camden v. Mulford, 26 N. J. L. 49. He there states the principle to be that ordinances which direct the mere repaving or repairing of streets, acts which are imposed upon municipal corporations as matters of duty, are purely ministerial; but that ordinances which require the paving of streets, not as a matter of ordinary repair, but upon specified conditions only, and impose the burden thereof, not only upon the city treasury, but upon a specific class of individuals, are in their nature judicial. The application of 712 the principle led to the overthrow of the ordinance then under review, which imposed upon abutting owners the cost of paving a city street, and which was passed without notice first having been given to them.

Since the decision of the cited case, in 1856, the principle established by it has always been accepted by our courts as furnishing the test for determining the character of an ordinance providing for a municipal improvement. In Vannatta v. Morristown, 34 N. J. L. 445, the test was applied by the supreme court to an ordinance directing the alteration of a grade line of one of the streets of a town, the court declaring that "the distinction is between those ordinances which adopt a general system of policy affecting all the inhabitants of a city or town, or the property situate in the corporate limits, directing the execution of mere public duties, the burthen of which is borne by all equally, and those which provide for the making of an improvement affecting property in one locality, the cost of which is to be defrayed by certain specified individuals. . . . . With respect to this latter class, the adoption of an ordinance directing the improvement to be made is a judicial act affecting those individuals, and they are entitled to be heard before the ordinance is passed which adjudges the necessity or expediency of the proposed improvement and directs it to be made." In the cases of Boice v. Plainfield, 38 N. J. L. 95, Stretch v. Hoboken, 47 N. J. L. 268, West Jersey Traction Co. v. Board of Works, 56 N. J. L. 431, 29 Atl. 163, and Landis v. Vineland, 60 N. J. L. 264, 37 Atl. 625, the supreme court reiterated the principle promulgated in Camden v. Mulford, and made the test furnished by it the basis

of its decision. In the case of West Jersey Traction Co. v. Board of Works, 56 N. J. L. 431, 29 Atl. 163, Justice Reed thus states the distinction between municipal acts which are ministerial and those which are judicial in their character: "A legislative (ministerial) act is one which prescribes & general rule of conduct, while a judicial act is one which imposes burdens, or confers privileges, in specific cases, according to the discretionary judgment of some person or board as to the propriety of imposing the burden, or granting the privilege, 713 in the specific case." The judgment rendered in the supreme court in this case was afterward affirmed, and its opinion adopted as the opinion of this court sub nom. Camden Horse R. R. Co. v. West Jersey Traction Co., 57 N. J. L. 710, 34 Atl. 1134.

In the case of Moore v. Haddonfield, 62 N. J. L. 386, 41 Atl. 946, this court had under consideration the validity of a municipal ordinance which fixed the location of the tracks of the West Jersey Traction Company in certain of the borough streets. Justice Garrison, who delivered the opinion of the court, after pointing out that the matter to be inquired of was whether the municipal action was legislative or judicial in its character, declared that an examination of our decisions would show that where personal property, or personal rights, are clearly involved, the rule is plain, and that in case the municipal action then under scrutiny imposed an additional burden upon the land of abutting owners it was judicial in its character. He then proceeds to point out that the ordinance affects only public rights, and imposes no burden upon abutting land owners, and for this reason declares the ordinance valid.

The rule established by this line of cases is so firmly imbedded in our jurisprudence as to be no longer debatable. The only question is its applicability to the given case. The ordinance now under review imposes upon abutting property the cost of paving Atlantic avenue, to the extent to which the improvement benefits that property, and it is argued that this fact differentiates the present case from those which have been cited, for the reason that the ordinance places no burden upon abutting property, because it furnishes to the owner an equivalent, in the benefit conferred, for the imposition which is placed upon it. But this contention overlooks the basis upon which the rule rests. Where the abutting owners were compelled to bear the whole expense of the improvement, they

received, always, a partial, and sometimes a full, equivalent for the burden imposed-a partial equivalent where the benefit was less than the amount assessed against the property, a full equivalent where the assessment was no greater 711 than the benefit received. But no distinction has been made in the decisions between cases of the one kind and the other. The question whether the benefit received was less than the burden imposed never has been considered as having any bearing in determining whether the ordinance which required the making of the improvement was legislative or judicial in its character. On the contrary, the fact that it imposes a burden upon the abutting land has been the only test, without regard to whether the benefit conferred was, or was not, an equivalent for the burden imposed. The test furnished by the rule must be accepted as an inherent part of the rule itself. Its application renders the ordinance under consideration invalid.

The judgment of the supreme court must be affirmed.

Proceedings for Street Improvements require notice and opportunity for hearing, to warrant the imposition of a charge by due process of law, where the cost of the improvement is to be apportioned among those benefited. An ordinance is unconstitutional which authorizes an assessment, but makes no provision for notice to the owners of the property assessed, and affords them no opportunity to be heard concerning the correctness of the assessment: Garvin v. Daussman, 114 Ind. 429, 5 Am. St. Rep. 637.


[73 N. J. L. 729, 65 Atl. 165.]

CONTRACTS-Public Policy-Right to Recover on Independent Ground. If a person has entered into a contract, void because contrary to public policy, his right to recover upon a ground of action that exists independent of the contract is not overthrown by the operation of the maxim in pari delicto. (p. 736.)

TRADE UNIONS—Unlawful Expulsion-Damages.—If the suspension of a member from a trade union and the consequent withdrawal of his membership card are not warranted by the laws of the association, because the tribunal that tried him acted without jurisdiction and without his consent as required, and such act results in the loss to him of his employment and resulting actual damage, he is entitled to recover therefor from such association. (p.. 737.)

CONSTITUTIONAL LAW-Right to Engage in Business or Labor. The liberty of the citizen entitles every man to freely engage in such lawful business or occupation as he himself may choose, free from hindrance or obstruction by his fellowmen, saving such as may result from the exercise of equal or superior rights on their part. (p. 739.)

CONSTITUTIONAL LAW-Right to Contract.-As a part of the constitutional right of acquiring property there resides in every man the right of making contracts for the purchase and sale of property, and contracts for personal services, which amount to the purchase and sale of labor. (p. 739.)

MASTER AND SERVANT-Procuring Discharge of Employé. Anyone intentionally and without legal justification procuring an employer to discharge his employé is liable to an action for damages at the suit of the latter, although there was no binding contract of employment. (p. 739.)

MALICE IN LAW Means nothing more than the intentional doing of a wrongful act without justification or excuse, and a wrongful act in this connection is any act which will in the ordinary course infringe upon the rights of another, to his damage, except it is done in the exercise of an equal or superior right. (pp. 740, 741.)

Riker & Riker, for the plaintiffs in error.

Howe & Davis, for the defendant in error.

730 PITNEY, J. This was an action of tort brought to recover damages sustained by the plaintiff through interference by the defendants with his employment in his trade as hatter. Plaintiff was a member of Local Union No. 17 of the United Hatters of North America. The defendants are this local union (sued, under Pamph. Laws 1885, p. 26, as a voluntary association consisting of more than seven members) and twelve individuals, one of whom was the secretary of the union, and the other eleven constituted a committee thereof, known as the "vigilance committee."

The plaintiff's declaration contains three counts, of which the first indicates the ground of recovery that is established by the verdict. It alleges, in substance, that plaintiff was a member of the "United Hatters of North America, Local No. 17," and was employed by a firm of E. V. Connett & Company, in the trade and occupation of the manufacture of hats, in the capacity of foreman; that he was authorized, under the constitution and by-laws of the United Hatters, to act in such capacity, and was enjoying the benefit of a membership card, issued by that association, certifying to his good standing; that the association and the individual defendants constituting its vigilance committee, in order to 731 injure the plaintiff in his said trade and occupation, on

August 6, 1902, maliciously and without reasonable or probable cause, pretending that plaintiff had violated the laws of the defendant "United Hatters of North America, Local No. 17," and without serving the plaintiff with written charges of the alleged violation, and without giving him notice of the hearing of said charges, adjudged the plaintiff to be guilty thereof, and directed that a fine of five hundred dollars be levied upon him; that afterward, on September 4, 1902, at a meeting of the defendant "United Hatters of North America, Local No. 17," the decision of the defendants adjudging the plaintiff guilty as aforesaid was reversed and set aside; that by reason of the plaintiff's refusal to pay the said fine the defendants withdrew from him the benefit of his membership card, by means whereof the said Connett & Company were compelled to, and did, refuse to continue the plaintiff in their employ, as they otherwise would have done, and by reason thereof the plaintiff was prevented from exercising his trade and occupation of a hat manufacturer and from obtaining any engagement or employment therein. As to this count the defendants pleaded the general issuenot guilty.

A trial being had before the judge of the Essex circuit court and a jury, there was a general verdict in favor of the plaintiff, and the consequent judgment is now before us for review. The assignments of error relate to certain rulings of the trial judge that are evidenced by bills of exceptions.

It appears that plaintiff was a member in good standing of the United Hatters' union, and was working in Connett's factory as one of several hundred men, all of whom belonged to the same union. He was a foreman, in receipt of eighteen dollars per week as wages. By the rules of the union no man could be employed in such a shop unless his membership card or check was on deposit with the shop steward, who was an agent of the union at the factory. By the same rules members of the union were not permitted to work in the shop together with any man who was not a member of the union or not in possession of his card. The union included within its jurisdiction 732 about two thousand two hundred men, employed in about fifteen different factories, situate in a district comprising Orange, Hackettstown, Bloomfield, Millburn and Livingston. All the hat factories in this district were under the jurisdiction of the same union. By an agreement made between the union and the manufacturers, every man

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