§ 422. Implications not Extended beyond what is Necessarily Implied. But the extension of an enactment by implication is confined to its strictly necessary incidents or logical consequences. When, for instance, a statute requires the performance of a service, it implies no provision that the person per forming it shall be remunerated (a). [Nor, where the usual compensation is reduced, is there any implication that the claim for the reduced compensation shall have precedence of others.] An Act which empowered justices to discharge an apprentice from his apprenticeship, if ill-treated by his master, would not inferentially empower them to order a return of the premium; for however just it might be that such a return should be made, and convenient that it should be ordered by the tribunal which cancelled the indenture, such a power was not the logical or necessary incident or result of that which was expressly conferred (b). Although the 33 & 34 Vict. c. 93 absolved a husband from liability for the antenuptial debts of his wife, and made the latter capable of being a trader, and "liable to be sued for," and her separate property subject to satisfy, her debts, "as if she had continued unmarried;" a married woman having separate property, was not, as a logical consequence of such liabilities, liable to be made a bankrupt (c). [Similarly, under the New Jersey married woman's act, which gave her merely the right to hold her property free from the control of her husband, it was held that the jus disponendi was not a necessary incident of the jus tenendi." And under a similar act in Pennsylvania, which gave to married women the power to make their property liable for the payment of necessaries purchased by them, it was held that there was, in this grant, no necessary implication of power to give written obligations for the payment of debts thus contracted, or to confess judgment there

State, was to be deemed the law, although differing from the act as published in the session laws.

(a) Per Lord Abinger in Jones v. Carmarthen, 8 M. & W. 605; R. v. Hull, 2 E. & B. 182; R. v. Allday, 7 Id. 799. See, also, Alresford v. Scott, 7 Q. B. D. 210.

28 People v. Williams, 8 Cal. 97.

(b) R. v. Vandeleer, 1 Stra. 69; East v. Pell, 4 M. & W. 665.

(c) Exp. Holland, L. R. 9 Ch. 307; Exp. Jones, 12 Ch. D. 484. See Guthrie v. Fisk, 3 B. & C. 178; Re Frankland, L. R. 8 Q. B. 18.

29 Naylor v. Field, 29 N. J. L 287.

for." Nor does an act giving to the wife the fruits of her own labor imply a right in her to abandon her husband, without his consent, for the purpose of acquiring earnings for her separate use, or to neglect or avoid, for such purpose, the duties the marriage relation imposes upon her." statute giving half the penalty imposed by it to the complainant does not impliedly give the latter authority to bring an action for the penalty in his own name." Nor would the grant of a power to construct a railway on one side of a town imply a right to make a temporary location on the other side." Nor does a power of sale given to municipal officers imply a power to exchange or barter."]

§ 423. Protection Implied in Grant, etc., of Powers, Duties, etc. -If the Legislature authorizes the construction of a work or the use of a particular thing for a particular purpose, the permission carries with it impliedly an exemption from responsibility for any damage arising from the use, without negligence; as, for instance, when haystacks are fired by locomotive engines plying on railways (a). So trustees and official persons who are authorized to execute a work, such as to raise a road, to lower a hill, or to make a drain, are impliedly authorized, if necessary for the due execution of their task, to prejudice the rights, or injure the property of third persons (b). But when an Act confers such powers,

30 Glyde v. Keister, 32 Pa. St. 85; Brunner's App., 47 Id. 67, 74. See, also, Swing v. Woodruff, 41 N. J. L. 469. But see Williamsport v. Com'th, 84 Pa. St. 487, where it is said, with reference to a municipal corporation, that the power to contract a debt implies the right to issue the proper acknowledgment, i. e., bonds, therefor.

Douglas v. Gausman, 68 Ill. 170. See, also, Randall v. Randall, 37 Mich. 563.

32 Smith v. Look. 108 Mass. 139. 33 Currier v. R. R. Co., 11 Ohio St. 228.

34 Cleveland v. State B'k, 16' Ohio St. 236.

(a) R. v. Pease, 4 B. & Ad. 30; Vaughan v. Taff Valley R. Co., 5 H. & N. 679; 29 L. J. 247; Freemantle v. London & N. W. R. Co.,

10 C. B. N. S. 89; 31 L. J. 12; Blyth v. Birmingham Water works Co., 7 Ex. 212; Dunn v. Birmingham Canal Co., L. R. Q. B. 42; Hammersmith R. Co. v. Brand, L. R. 4 H. L. 171; Cracknell v. Thelford, L. R. 4 C. P. 629 ; Geddis v. Bann Com., 3 App. 455, per Lord Blackburn. [Whart., Negligence,

869, citing to same effect the following American cases: Sheldon v. R. R. Co., 14 N. Y. 218; Hinds v. Barton, 25 Id. 544; Road v. R. R. Co., 18 Barb. (N. Y.) 80; Phila., etc., R. R. Co., v. Yeiser, 8 Pa. St. 366; Frankfort, etc., Turnp. Co. v. R. R. Co., 54 Id. 345; Balt., etc., R. R. Co. v. Woodruff, 4 Md. 242; Jefferis v. R. R. Co., 3 Houston (Del.) 447. See, also, Shearman & Redfield, Negli gence, §332.]

(b) Per Williams, J., in White

it also impliedly requires that they shall be exercised only. for the purposes for which they were given, and subject to the conditions which it prescribes, and also with due skill and diligence, and in a way to prevent a needless mischief or injury (a). A power, for instance, to establish asylums for the sick would not authorize the establishment of a small-pox hospital in such a place or circumstances as to be a common nuisance (b). [So, where the state's right of eminent domain is committed to a corporation, and by virtue of the same the latter may lawfully enter upon the land of an individual and build all structures proper to accomplish the purpose of its charter, this power does not justify unskillfulness or unnecessary injury in the mode of performing the work, or in the character of the structures erected."] And further, as a grant of fish in a pond does not carry with it an authority to dig a trench to let the water out to take the fish, since they can be taken by nets or other devices, without doing such damage (c); so, a statute does not give by implication any powers not absolutely essential to the privilege or property granted. An authority to construct a sewer on the land of another, for instance, would not carry with it the right to lateral support from the land, if it was possible to construct an adequate sewer independent of such support (d). If land is vested by Act of Parliament in persons for public. purposes, a power of conveying away any part of it would not be impliedly granted (e). [Similarly, where a railroad company has the right, subject to liability for compensation,

house v. Fellowes, 10 C. B. N. S. 780; Sutton v. Clarke, 6 Taunt. 34; Stainton v. Woolrych, 23 Beav. 225; 26 L. J. 300.

(a) Jones v. Bird, 5 B. & A. 837; Grocers' Co. v. Donne, 3 Bing. N. C. 34; Clothier v. Webster, 12 C. B. N. S. 750; 31 L. J. 316; Lawrence v. G. N. R. Co.. 16 Q. B. 643; Collier V. Middle Level Commrs., L. R. 4 C. P. 279; Geddis v. Bann Com., 3 App. 430.

(b) Metrop. Poor Act, 1867, s. 5; Metrop. Asylum District v. Hill, 6 App. 193; 50 L. J. 353.

35 P. F. W. & C. Ry. Co. v. Gilleland, 56 Pa. St. 445, 452.

to take land to a certain width, for the construction and operation of its roadway," after the right has been exercised, the use of the property must be held in accordance with and for the purposes which justified its taking. . Hence it is that no one can pretend that a railroad company may build private houses and mills, or erect machinery, not necessarily connected with the use of their franchise, within the limits of their right of way. If it could, stores, taverns, shops, groceries and dwellings might be made to line the sides of the road outside of the track-a thing not to be thought of under the terms of the acquisition of the right of way.""]

§ 424. Implied Obligations.-The concession of privileges or powers carries with it, often, implied obligations. For instance, an Act which gives a power to dig up the soil of streets for a particular purpose, such as making a drain, impliedly casts on those thus empowered the duty of filling up the ground again, and of restoring the street to its original condition (a). If it imposed a liability on one person to keep in repair a work in the possession of another, it would be understood as impliedly imposing on the latter the obligation of giving notice of the needed repair to the party liable (b). A public body, authorized to make a bridge or towpath and to take tolls for its use, is impliedly bound to keep it in proper repair, as long as it takes the tolls, and invites the public to use the work; or at least, to give those whom they invite to use it, due warning of the defect which makes it unfit for use (c). [So, a city being, under powers given it by its charter, etc., in possession of a public wharf and exercising exclusive supervision and control over it, and

36 Lance's App., 55 Pa. St. 16, 25 So a grant of a right of way, fifty feet wide, by a city to a railroad over a small strip of land, through a densely populated part of the city, conveys only so much ground as is necessary for the line of the road, and will not carry, by implication, the right to erect, within such line, depots, car-houses, or other structures for the convenience or business of the road: Allegheny v. R. R. Co., 26 Pa. St.

(a) Gray v. Pullen, 5 B. & S. 970, 34 L. J. 265.

(b) London & S. E. R. Co. v. Flower, 1 C. P. D. 77; Makin v. Watkinson, L. R. 6 Ex. 25. See Scaltock v. Harston, 1 C. P. D. 106; Brown v. G. E. R. Co., 2 Q. B. D. 406.

(c) Winch v. Conservators of the Thames, L. R. 7 C. P. 458, 9 C. P. 378; Nicholl v. Allen, 1 B. & S. 934, 31 L. J. 283, 431; Forbes v. Lee Cons. Board, 4 Ex. D. 216.

receiving tolls for its use, is bound to keep it in proper con dition for use." And, of course, where a statute authorizes a person to build a road and collect tolls thereon, requiring him to macadamize it, and declaring a forfeiture of all rights acquired under it upon failure to comply with the act, he cannot be permitted to collect tolls when he has macadamized only part of the road."] If statutory authority is given to persons, primarily for their own benefit and profit, rather than for any advantage which the public may incidentally derive, such as to cut through a highway and throw a bridge over the cutting, or to substitute a new road for the old one; the burden of maintaining the new work in repair would impliedly be cast on them, and not on the county or parish (a.) Another duty which would also be impliedly imposed on them by such an enactment would be that of protecting the public from any danger attending the use of the new work. If it was a swing bridge, for instance, they would be bound to take due precautions to prevent persons from attempting to cross it, while it was open (b). If the work was a railway, crossing a highway on a level, they would be impliedly bound to keep the crossing in a proper state to admit of the use of the highway by carriages, without damage to them (c); [and, at an established level crossing. where there is a footpath, to place lights at night."] And this implied obligation would not be excluded on the principle expressum facit cessare tacitum, by the fact that certain duties are expressly imposed by statute on railway companies who make such crossings; ex. gr., to erect and maintain gates where the public road crosses the railway, and to employ men to open and shut them, and to keep them closed except when carriages have to cross (d). So, notwithstanding all such express provisions, the company would be bound, by implication, to prevent all passage along the portion

37 Pittsburgh v. Grier, 22 Pa. St. 54.

38 State v. Curry, 1 Nev. 251. (a) R. v. Kent, 13 East, 220; R. v. Lindsay, 14 East, 317; R. v. Kerrison, 3 M. & S. 526; R. v. Ely, 15 Q. B. 827; North Staffordshire R. Co. v. Dale, 8 E. & B. 836; Leach v. North Staffordshire R.

Co., 29 L. J. M. C. 151.

(b) Manley v. St. Helen's Co., 2 H. & N. 840, 27 L. J. 159.

(c) Oliver v. N. E. R. Co., L. R. 9 Q. B 409.

39 Whart., Neg., § 808a, and cases cited in notes to same.

(d) Id.; G. E. R. Co. v. Wan less, L. R. 7 H. L. 12.