Fitzgerald v. Palmer, A--101
| Decision Date | 02 May 1966 |
| Docket Number | No. A--101,A--101 |
| Citation | 219 A.2d 512,47 N.J. 106 |
| Parties | Rosa B. FITZGERALD, General Administratrix of the Estate of Lonnie J. Fitzgerald, Deceased, and Rosa B. Fitzgerald, Administratrix ad Prosequendum of the Estate of Lonnie J. Fitzgerald, Deceased, Plaintiff-Appellant, v. Dwight R. G. PALMER, Commissioner, State Highway Department of the State of New Jersey, Defendant-Respondent. |
| Court | New Jersey Supreme Court |
Ira Rabkin, Camden, for appellant (Molotsky, Rabkin & Gross, Camden, attorneys).
Alan B. Handler, First Asst. Atty. Gen., for respondent (Richard Newman, Deputy Atty. Gen., of counsel and on the brief, Arthur J. Sills, Atty. Gen., attorney).
The opinion of the court was delivered by
Plaintiff's decedent was killed when his automobile was struck by a piece of concrete weighing about 60 pounds dropped by an unknown person from an overhead crossing constructed by the State Highway Department. The event was unquestionably a criminal one. The culprit had carried the piece of concrete a considerable distance to the point from which it was released to the road below. The suit is against the State Highway Commissioner, not individually, but in his official capacity. Plaintiff acknowledges the suit is against the State. The thesis of the wrong is that the State was negligent in its construction of the overpass in that it did not erect wire fences to prevent a criminal attack. The trial court granted a motion for judgment on the ground that the complaint did not state a cause of action. We certified the appeal before argument in the Appellate Division.
Plaintiff asks that we (1) end the State's immunity from suit and (2) find a failure to guard against such a criminal attack constitutes an actionable wrong.
The State's immunity from suit does not rest upon the notion that the State can do no wrong. Indeed the State can do wrong, so much so that it can expend public moneys to compensate for the wrong it does. In sustaining the legislative power to pay, we explain the State thereby merely recognizes a 'moral' obligation, by which we mean only that the obligation is 'moral' rather than 'legal' because there is no machinery to compel the State to do what in justice it ought to do. Thus the State's 'immunity' involves ultimately the question, which branch of government shall decide for the State when it shall pay? In the abstract, a question of that kind would seem 'judicial' enough, in the absence of a controlling policy expression by the Legislature. But the judiciary could not enforce a judgment if it gave one. No money may be drawn from the State treasury but for appropriations made by law. Const., Art. VIII, § II, 2. The judiciary could not order the Legislature to appropriate money, or the Governor to approve an appropriation if one were made. Gallena v. Scott, 11 N.J. 231, 238--239, 94 A.2d 312 (1953); cf. Baltzer v. State of North Carolina, 161 U.S. 240, 16 S.Ct. 500, 40 L.Ed. 684 (1896). Nor would it do to issue a writ of execution to sell the State House or the courtroom furnishings. Cf. 49 Am.Jur., States, Territories, and Dependencies, § 104, pp. 319--20. Thus the problem arises from the circumstance that under our system of separation of powers, the judiciary, not controlling the purse strings, cannot act effectively alone.
Plaintiff recognizes that we could not compel satisfaction of the alleged wrong, but she asks that we nonetheless declare the justice of her cause in the hope that the other branches of government will abide by our view. Cf. Borchard, 'Governmental Responsibility in Tort, V,' 36 Yale L.J. 757, 802 (1927). There may be reported instances in which courts, having accepted controversies as to which they ultimately found they could not order relief because of the doctrine of separation of powers, nonetheless expressed their opinion upon the merits. But here we are asked to proclaim our power and willingness to give our views upon any and all claims against the State for the influence, if any, they may have upon our coordinate branches of...
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