47 A. 330 | Conn. | 1900
The motion to quash cannot be sustained unless one of the following propositions, affirmed by the plaintiff, is incorrect: 1. The cross-over in question was not constructed in accordance with the plan approved by the mayor and court of common council. 2. The council is authorized by § 3 of the Act of 1893 (Public Acts of 1893, p. 308), to order the removal of a cross-over thus constructed, and such order may be enforced by mandamus. 3. It was not necessary for the council to formally refer the order to the board of street commissioners, and the hearing had before the commissioners was equivalent, for all purposes affecting the order, *335 to a hearing before the council. 4. The defendant received sufficient notice of the making of the order.
We think each of these propositions is correct.
First. It is alleged that the cross-over as approved by the council was one "located about 420 feet east of Sigourney Street"; and that the cross-over constructed by the defendant is "about 950 feet east of Sigourney Street." This difference of more than 500 feet is enough to prevent the defendant (certainly as against any order of the council enforcing its power of control over placing the track) from claiming that the track has been constructed in accordance with the plan approved.
Second. Prior to 1893 no street railroad could lay down any rails in the streets of a city except in the manner prescribed by the common council, nor use any new motive power without the permission, subject to revocation, of the mayor and common council. General Statutes, §§ 3595, 3596. Section 1 of the Act of 1893 repealed these sections; and § 2 prescribed the mode of proceeding in using the authority given to any company to construct a street railroad within a city, or to lay down additional tracks, or when it desired to change its motive power. It provided that before exercising the authority to lay down additional tracks, the company must present to the mayor and court of common council for its approval, a plan showing, among other things, the location or position of its tracks in the streets; and it forbade the company to lay any tracks except in accordance with a plan so approved. This section, with the Act of 1895 authorizing in certain cases a judicial review (Public Acts of 1895, p. 630), covers the whole subject of obtaining the special municipal authority necessary to the construction of the tracks in pursuance of the general or legislative authority. But it was deemed necessary that after the tracks of a company had been permanently located in the streets by the approval of a plan as provided in § 2, the mayor and court of common council should not only have direction and control over the placing of tracks in accordance with the plan and over certain matters of detail not specified in the plan, but should have power to revise and change such orders as might *336 be involved in the approval of the plan, and such as might be made in the exercise of the power of control over its execution. Sections 3 and 11 of the Act were framed to accomplish these purposes. Section 3, whatever other effect it may have, confers on the mayor and court of common council the power of direction and control over placing the tracks and other structures in accordance with the plan approved, and includes the power of directing their removal when not so placed; and provides that orders necessary to the exercise of such power may be enforced by mandamus at the instance of the city. The application of the defendant for approval of its plan for laying an additional track, and the consequent relocation of its existing track, is governed by § 2, and the construction of both tracks, including the cross-over, must be in accordance with the plan approved. When, therefore, the defendant departed from that plan in laying the cross-over, an order to remove the track thus laid was authorized by § 3, and may be enforced by mandamus.
Third. While an order like the one in question is not made dependent for its validity on giving the defendant notice of its pendency (although it may be that in common fairness the defendant should in some way have an opportunity to be heard before its final passage), and while the law does not require the council to refer such an order to the board of street commissioners, — yet that board, in the exercise of powers vested in it, might properly consider a complaint from an adjoining landowner who claimed that the track in front of his premises was unauthorized, or practically a nuisance, and after a hearing in pursuance of such complaint upon the question of the removal of the track, at which the defendant was represented, might properly recommend the council to order its removal. An order passed by the council under such circumstances cannot be treated for any purpose as one passed without reasonable notice to the defendant or opportunity to be heard.
Fourth. The Act of 1893 requires the order to be in writing and recorded in the city records. It does not provide that it shall be served on the railroad company, nor how it *337 shall be brought to its notice. We think that a copy of the order sent by the city clerk by mail to the defendant, with actual notice of its passage as alleged in the writ, was notice to the defendant of the passage of the order, within the implied requirements of this section. Assuming, as the defendant claims, that the Act of 1895 should be held, on equitable considerations, to operate as a suspension of the defendant's obligation to obey the order until thirty days from "service of notice" of its passage shall have elapsed, we think the "service of notice" in such case should not be held to require any other notice to the defendant than that sufficient to make the order binding on the defendant under § 3 of the Act of 1893.
It follows that the trial court erred in sustaining the motion to quash on the grounds stated in the order for judgment; and, in the view we have taken of the law, no one of the other grounds specified in the motion is sufficient.
It is urged that the court might, in the exercise of sound discretion, refuse an issue of the peremptory writ; but in this case the court has not reached the question of discretion; it has dismissed the alternative writ solely because it has ruled that the allegations of the writ are insufficient in law. There certainly is nothing in this record to require a refusal of the writ in the exercise of legal discretion, and we are not called upon to review such action.
The writ does not in terms allege that the order was recorded. We do not consider the question whether this omission is a defect which might have been taken advantage of, and if so, whether the informality is such as must be regarded as waived when not specifically pointed out. It is hardly reasonable, upon the facts appearing in the record, to doubt that the order was in fact recorded. If the order was not recorded and the defect is one of substance and for that reason fatal, a reversal of the judgment, as erroneous on the grounds stated, cannot foreclose the defendant's rights. Under these circumstances we ought not — in the exercise of a discretion always to be used with caution — to decide or consider this question, which has not been argued and which *338 does not appear by the record to have been raised at the trial and to have been decided by the trial court.
There is error; the judgment of the Superior Court is reversed, and the cause remanded for further proceedings according to law.
In this opinion the other judges concurred.
