Betts v. New Hartford, 25 Conn. 180

Betts v. New Hartford

25 Conn. 180 | Conn. | 1856

Ellsworth, J.

One of the questions reserved for this court is, whether the record of the case 'of the State v. Hermon Chapin, in the superior court, was improperly rejected by the commissioners, on their inquiry into the common con*185venience and necessity of the highway prayed for. It appears, that Chapin had been tried and found guilty for placing an obstruction in a certain highway, and was fined by the justice, four dollar's. He appealed to the county court and again was found guilty, and fined ten dollars. He then carried the case by writ of error, into the superior court, but did not get a reversal of the judgment. Now, it was a certified copy of this writ of error which the defendants presented to the commissioners. They offered it, to proveas they said, first, that Chapin had been convicted of placing a nuisance in the highway; secondly, that there was an ample highway already existing at the place in question; thirdly, that Chapin had dedicated his land to the public for a highway, and fourthly, that this dedication, if made, should at least reduce his damages. This evidence it is most obvious, is not the most appropriate and best evidence of the trial and conviction in the inferior court. The record of that court is the proper evidence and the recital of that record in the writ of error is no evidence at all, except for the proceedings in error. But passing this, if the form of the evidence were unexceptionable, as contended, we are not satisfied that the evidence was material or relevant. It was the record of a criminal suit, and the only important fact supposed to be established by the verdict is, that there was already a highway at the place in question, and that it was unnecessary to lay out a new one; and that if a new one was laid out, it would be less injurious to said Chapin. To this we answer, that a verdict in a criminal case is not evidence of the facts upon which judgment was rendered, when those facts come up in a civil case, for this evidence would not be material; and so the law is perfectly well settled. 1 Greenl. Ev., §§ 536, 524. 1 Phil. Ev., 231. Sw. Ev., 20.

The next objection is, that the commissioners allowed to one Darius B. Smith, a small sum of money, as his damages, when, as the defendants insisted, he was entitled to no damages at all, because he had already dedicated his land to the public. This supposed dedication the commissioners duly inquired into, and they found that it was not true; that *186the road bad not been dedicated as a public highway, and therefore they allowed to said Smith, as they had a right to do, his proper and legal damages.

The next objection is, that Stephen Deming Esq., one of the commissioners, was at the time of the trial over seventy years of age, and was by the constitution of the state incompetent to act in a judicial capacity. The article of the constitution referred to is the fifth, which treats of the “judiciary department.” It provides that the judicial power shall be vested in a supreme court, a superior court, and such inferior courts as the general assembly shall from time to time ordain or establish. The second section declares that justices of the peace shall be appointed. The third section proceeds to point out the manner of appointing judges of the supreme court and of the superior court, and justices of the peace ; and then after speaking of the tenure of office of these judges and justices, it provides that no judge or justice of the peace shall be capable of holding his office after he shall arrive at the age of 70 years. These words of the constitution do not comprehend mere administrative officers of the government, such as commissioners, committees, auditors, selectmen and the like, who were never called judges, and who do not constitute a court vested with judicial power. So we decided in the case of Groton and Ledyard v. Hurlburt & al., 22 Conn. R., 178, which case involved this very question. It was the case of county commissioners, and we held that they did not essentially differ from commissioners on bridges, ferries, sewers, and turnpike roads, fence viewers, committees of courts, or selectmen. We are satisfied that the persons in question are not judges of courts, coming within the 5th article of the constitution. They hold no courts, nor have they clerks, nor records or fixed modes of proceeding or practice.

We may add, that as the three commissioners were unanimous in their report, if Mr. Deming was incompetent by reason of age, then the other two commissioners alone constituted the board, and could as well make the report, as the entire board.

It was again objected that the commissioners should not *187have awarded damages to said Chapin for a supposed injury to his land, because the land where the highway was laid out by them, had been dedicated by said Chapin to the public; and the circumstances to prove this are declared in the remonstrance of the defendants. Our answer to this is, that the commissioners received this evidence, and much other evidence to'the contrary offered by said Chapin, and on consideration of the whole evidence, found there had been no such dedication, and thereupon proceeded to lay out the highway as necessary, and to assess damages, as they certainly had a right and were bound to do, in discharge of their public duty.

There is no force in the remaining claim, that the court below should have permitted the defendant on hearing the remonstrance, to go into original proof that the greater part of the land over which the commissioners had laid out the highway, had been dedicated to the public. This inquiry belonged exclusively to the commissioners, who necessarily examined into it as involved in the inquiry whether or not the highway prayed for was of common convenience and necessity.

As we decide that the report of the commissioners is unexceptionable and ought to be accepted, in this event we are requested to advise the court below, that the defendants are entitled under the statute, to have the damages reassessed, being as they insist altogether excessive. We think they are not. Persons whose lands are taken, alone have this right and privilege, but not the public, for it is the public by its own agents, who have taken the land from others at its just value as fixed by themselves, the legally constituted agents of the government; and certainly the public can not complain of the judgment of their own agents. This we are satisfied is the true theory; and we see nothing in the statute which leads us to form a contrary opinion. Such, we believe, has been the uniform practice and general understanding of the people and the courts of the state.

Our advice is, that judgment be rendered for the plaintiffs.

*188In this opinion, the other judges, Storrs and Hinman, concurred.

Judgment for the plaintiffs.