Clapp v. City of Hartford, 35 Conn. 220

Clapp v. City of Hartford

35 Conn. 220 | Conn. | 1868

Carpenter, J.

Strictly speaking this case is not properly

before us. The proceedings before Judge Loomis terminated on the 5th day of August, 1867. A motion in error was filed and the record transmitted to the Supreme Court of Errors. The cause was heard at the February term, 1868, and it was adjudged that there was no error in the proceedings. On the 22d day of April following, the parties again appeared before Judge Loomis,and the counsel for the appellees moved that no further action be had in the matter, “ on the ground that the charter of the city of Hartford, in so far as it created the court and gave it judicial power, was unconstitutional and void.” That motion was overruled, and thereupon the present motion in error was filed. To this motion there are two fatal objections.

1. The cause was not pending when the motion to dismiss the proceedings was made; consequently the judge had no power to allow or disallow it. Final judgment was rendered on the 5th day of August, 1867, and no action upon this motion would have affected the validity of that judgment. In*222deed, no further action could have been had, except, perhaps, to tax costs and issue execution. Such proceedings do not ordinarily lay the foundation for a writ of error.

2. But if the cause is to be regarded as then pending for any judicial purpose whatever, still, the motion in error should not have been allowed. The motion was an interlocutory one to stay further proceedings. It was overruled, but whether any further proceedings were had in the matter does not appear. Overruling the motion was in no sense a final judgment.

Again; the questions involved in the motion might have been heard and determined upon the former trial. That of itself would have precluded the appellees from a hearing had the exception been taken, either by the other party or the court. Fowler v. Bishop, 32 Conn., 199.

But as the appellants waived all the objections hitherto considered, and argued the cause upon its merits, and as it may be of some advantage to the parties to have the questions discussed authoritatively settled, we will briefly consider them.

The objection to the validity of these proceedings is based upon the assumption that the judge acted as a court within the meaning of the constitution, and that such court was established and created by the city charter. This assumption is not well founded, in respect either to the origin or character of the tribunal in question. In Trinity College v. The City of Hartford, 32, Conn., 466, note, this court held that the judge was to be regarded as constituting a special tribunal for the particular purpose named, and that a motion for a new trial or other proceeding in error would not lie from his judgment. In the former trial of this case that decision was affirmed; and we further expressed the opinion that the statute, authorizing a motion in error or a motion for a new trial in such cases, did not change the character of the tribunal. (Ante, page 73). We now see no reason for changing or modifying our views upon this question. The tribunal, then, although possessing some of the attributes and powers of a court for the time being, was not a court within the meaning of the constitution.

*223But if the judge below is to be regarded as a court in any sense, we can hardly assent to the proposition that he was constituted such by the city charter. He was a judge of the Superior Court, legally and constitutionally appointed. The city charter conferred upon him jurisdiction of this appeal, as a judge of the Superior Court. It did not create an office and appoint an incumbent, but simply conferred upon an existing officer certain powers and duties. In this we see nothing inconsistent with the letter or spirit of the constitution.

There is no error in the proceeding.

In this opinion the other judges concurred.