Further, with respect to the performance of governmental functions recovery was allowed on a showing of negligence if the injury arose from the creation of a private nuisance threatening a specific person or groups of persons. See, e.g., Casey v. Bridgewater Township, 107 N.J.L. 163, 151 A. 603 (E. A. 1930); Pray v. Mayor of Jersey City, 32 N.J.L. 394, 396 (Sup.Ct. 1868). But if a public nuisance, such as a ditch in a public road, threatened the public in general, liability required active wrongdoing.
Martin v. Asbury Park, 111 N.J.L. 364 ( E. A. 1933); Olesiewicz v. Camden, 100 N.J.L. 336 ( E. A. 1924). If the function was determined to be governmental, active wrongdoing had to be found, else there was no cause of action. Casey v. Township of Bridgewater, 107 N.J.L. 163 ( E. A. 1930). The rub had come in deciding what was governmental and what proprietary and what amounted to active wrongdoing. See Weintraub and Conford, "Tort Liability of Municipalities in NewJersey," 3 Mercer Beasley L. Rev. 142 (1934).
The act sued upon in the instant case was in connection with the maintenance of traffic lights, and with the repair of roads, and, so, was a governmental operation. Vickers v. Camden, 122 N.J.L. 14 ( E. A. 1938); Casey v. Bridgewater Township, 107 N.J.L. 163 ( E. A. 1930). That broad common law immunity has been modified in this State to the extent that although a municipal corporation charged with performance of a public duty is not, in its governmental functions, liable to an individual for neglect to perform or for negligence in performance whereby an indictment would lie, nevertheless, where the municipal corporation had been guilty of active wrongdoing, as distinguished from mere negligence, the corporation should not be immune from liability for private injury. That principle was applied in such cases as Hart v.Freeholders of Union, supra; Kehoe v. Rutherford, 74 N.J.L. 659 ( E. A. 1907); Ennever v. Bergenfield, 105 N.J.L. 419 ( E. A. 1928), and Allas v. Rumson, 115 N.J.L. 593 ( E. A. 1935).
Therefore, it is unlawful for an agent or employee of a corporation, who is not a duly licensed attorney, to practice law or to appear in court representing or on behalf of a corporation. Sec. 11693, R.S. 1929; State ex inf. Miller v. St. Louis Union Tr. Co., 74 S.W.2d 348; Mullin-Johnson Co. v. Penn. Mut. Life Ins. Co., 9 F. Supp. 175; New Jersey Photo Engraving Co. v. Shonert Sons, 95 N.Y. Eq. 12, 122 A. 307; Black White Operating Co. v. Grosbart, 107 N.J.L. 163, 151 473 A. 630; Cary Co. v. Satterlee Co., 166 Minn. 507, 208 N.W. 408; In re Co-operative Law Co., 198 N.Y. 479, 92 N.E. 15, 32 L.R.A. (N.S.) 55; Authorities under Point (1). E.C. Curfman and A.F. Harvey for respondent.
4. Finally under this point it is urged that the appellant, city, is not liable, because, being a municipal corporation, the enterprise was a governmental function. Hereunder, and in support of this legal proposition, are cited Tomlin v. Hildreth, 65 N.J.L. 438; Olesiewicz v. Camden, 100 Id. 336; Johnson v. Wildwood, 102 Id. 606, and Casey v. Bridgewater, 107 Id. 163. Again we are compelled to say that the appellant fails to present the dominant and controlling principle applicable.
If the function was determined to be governmental, active wrongdoing had to be found, else there was no cause of action. Casey v. Township of Bridgewater, 107 N.J.L. 163 ( E. A. 1930). The rub had come in deciding what was governmental and what proprietary and what amounted to active wrongdoing.
Other cases which rely upon the Kiernan case have to do with nuisances or wrongs arising from a use of real property, or of a building thereon or sewers which may be said to be a part thereof. Waters v. Newark, 56 N.J.L. 361 ( Sup. Ct. 1894), affirmed 57 N.J.L. 456 ( E. A. 1894); Hart v. Board of Freeholders of Union, 57 N.J.L. 90 ( Sup. Ct. 1894); Murphy v. Borough of Atlantic Highlands, 77 N.J.L. 452 ( Sup. Ct. 1909); Bisbing v. Asbury Park, 80 N.J.L. 416 ( E. A. 1910); Caruso v. Town of Montclair, 88 N.J.L. 405 ( Sup. Ct. 1916), affirmed 90 N.J.L. 255 ( E. A. 1917); Buckalew v. Board of Chosen Freeholders of Middlesex, 91 N.J.L. 517 ( E. A. 1918); Johnson v. Board of Ed., Wildwood, 102 N.J.L. 606, 611 ( E. A. 1926); Allas v. Rumson, 115 N.J.L. 593 ( E. A. 1935), supra; Bengivenga v. Plainfield, 128 N.J.L. 418 ( E. A. 1942); cf. Casey v. Bridgewater Twp., 107 N.J.L. 163 ( E. A. 1930). At any event, any endeavor to apply the Kiernan doctrine to a matter of negligence, as distinguished from one of nuisance, can hardly be sustained at this day.