State v. Lackawanna R Co. of N.J.

• Decision Date: 03 March 1913
• Citation: 86 A. 386,84 N.J.L. 289
• Parties: STATE v. LACKAWANNA R CO. OF NEW JERSEY.
• Court: New Jersey Supreme Court

86 A. 386

84 N.J.L. 289

STATE

v. LACKAWANNA R CO. OF NEW JERSEY.

Court of Errors and Appeals of New Jersey.

March 3, 1913.

(Syllabus by the Court.)

Error to Supreme Court.

The Lackawanna Railroad Company of New Jersey was convicted of maintaining a nuisance in a public street and it brings error. Reversed.

See, also, 82 N. J. Law, 747, 82 Atl. 851.

M. M. Stallman, of Newark, and Gilbert Collins, of Jersey City, for plaintiff in error.

Henry Huston, of Newton, for the State.

GARRISON, J. The Lackawanna Railroad Company of New Jersey was Indicted and convicted for maintaining a nuisance in a public street in the borough of Andover by erecting in said street the abutments for an overhead bridge by which its tracks were carried over and across such public road. These abutments were erected in the public road and encroached upon each side of it to the extent of 4 1/2 feet, thereby reducing the road from its legal width of 33 feet to an actual width of 24 feet. These facts having been shown by the state and not controverted by the defendant, its counsel offered in its defense to prove the number of vehicles that used the public road at this point, and other facts tending to show that the passage constructed beneath the bridge and between the abutments was of a width and character suitable to the locality, and that the travel on such road would be in no way impeded. This defense was made upon the theory that such was the measure of the defendant's statutory duty under the twenty-sixth section of the general railroad law, and that, if it had performed its statutory duty it could not be guilty of maintaining a nuisance.

The trial judge, conceiving that it was the duty of the defendant to bridge the entire width of the highway, refused to admit the testimony and charged the jury, in effect, that their verdict must be against the defendant.

The legal question, which is the construction of the statute, is presented by the exception allowed to the overruling of this testimony, so that, with respect to the question whether the charge amounted to a direction of a verdict, nothing need be added to what was said by this court in an earlier per curiam. The judgment of the sessions was taken to the Supreme Court upon writ of error and was there affirmed; the opinion being delivered by the Chief Justice. State v. Lackawanna R R Co., 81 N. J. Law, 181, 79 Atl. 1030.

The Chief Justice, after stating in this opinion that the right of a railroad company by virtue of the twenty-sixth section of the general railroad law to narrow a public road, at the point where it crosses, by placing upon the sides of such public road the abutments of the bridge that carried the railway over it had not been passed upon by the law courts of this state, but had been decided adversely to such right by the Court of Chancery, conceived it to be his duty to follow the construction thus placed upon the statute by the court of equity, and upon that ground a judgment affirming the defendant's conviction was rendered. The equity case thus referred to and followed was Township of Raritan v. Port Reading R R. Co., 49 N. J. Eq. 11, 23 Atl. 127, in which Chancellor McGill held that: "When the railroad is so built as to cross a highway above its grade, it must bridge the entire width of the highway." The judgment of the Supreme Court then came to this court upon a writ of error and was affirmed for the reasons stated by the Chief Justice. State v. Lackawanna R. R. Co., 82 N. J. Law, 747, 82 Atl. 851.

A reargument was afterwards ordered, upon which the entire case has been re-examined with particular reference to the authority upon which the judgment of the court below was founded, with the result that we disapprove of the construction placed upon the general railroad act in the equity case that was followed by the Supreme Court, and think that that court committed error in the judgment that it rendered.

In the first place, what Chancellor McGill said in the Raritan Case was clearly obiter dictum, for, while the facts of the case squarely presented the question, the decision of the court was, just as squarely, placed upon the ground of a lack of jurisdiction to pass upon the question so presented. The rule for an injunction was discharged by the chancellor because "the remedy by indictment was sufficient to abate the nuisance and to restore to the public use the entire highway," and in such case "equity will not exercise its jurisdiction."

What the chancellor said, therefore, concerning the general railroad law was an expression of opinion upon a matter that was avowedly not within the jurisdiction that he was exercising, and hence had not the force of judicial decision, although it is, of course, entitled to respectful consideration as the view of a careful and learned judge.

Vice Chancellor Stevenson was therefore quite right when in his opinion in South Amboy v. Penna. R. R. Co., 76 N. J. Eq. 57, 66, 73 Atl. 852, 856, he characterized this view as "the doctrine laid down by Chancellor McGill I think by way of dictum when the case is carefully analyzed."

This criticism is the more significant, because Vice Chancellor Pitney, in the case of Borough of Metuchen v. Penna. R. R. Co., 71 N. J. Eq. 404, 416, 64 Atl. 484, had endeavored to sustain the chancellor's opinion as judicial decision upon the hypothesis that he did not mean what he said, a process not lightly to be applied to the language of as precise a writer as Chancellor McGill.

We agree with Vice Chancellor Stevenson that in the Raritan Case the doctrine was the dictum and that the decision was solely as to jurisdiction.

While, therefore, the precise question raised on this writ of error is res nova, the same statutory provision, in its essential features, has been repeatedly before our courts, notably in State v. Central Railroad Co., 32 N. J. Law, 220, and in the Metuchen Case in this court (73 N. J. Eq. 359, 69 Atl. 465). The...