111 A. 897 | Conn. | 1921
It appears from the complaint that the only action taken by the board of aldermen with reference to the construction of the two connecting sections of the Middletown Avenue sewer, was in and by two orders, identical in form except for the designation of the termini of each section, and reading: "Ordered that the director of public works cause a sewer to be constructed in Middletown Avenue between [naming the termini], of the proper size and materials, with all necessary manholes, culverts, basins, and so forth." The plaintiff claims that this order constituted an invalid delegation of power to the director of public works, and that the laying of the sewer by the director under this order was not legally authorized; that the assessment of benefits was, by consequence, illegal and an attempt to take money without due process, and should be annulled; and both parties agree that the fundamental question in this case is whether or not the order for the laying of these sewers was so inadequate as to involve a delegation of power with reference to the construction of this sewer, of such matters as were properly legislative in character and should under the proper construction of the charter have been performed by the board of aldermen itself and not by the director of public works.
In Bradley v. New Haven,
The principle appears to be everywhere recognized that the "public powers or trusts devolved by law or charter upon the council or governing body [of a municipality], to be exercised by it when and in such manner as it shall judge best, cannot be delegated toothers." 1 Dillon on Municipal Corporations (5th Ed.) § 244; 28 Cyc. pp. 276, 277; 19 R. C. L. p. 896; and numerous cases there cited. In Cooley on Constitutional Limitations (7th Ed.) p. 293, the rule is thus expressed: "So far as its functions are legislative, they rest in the discretion and judgment of the municipal body intrusted with them, and that body cannot refer the exercise of the power to the discretion and judgment of its subordinate or any other authority." At the same time, this rule is modified by the equally well supported and understood qualification that powers of a purely ministerial, administrative, or executive nature, may be delegated to a committee or some appropriate officer. See authorities cited above.
While the rules above stated are generally agreed *654 upon, their correct application to cases under specific municipal charters is not always easy. The municipal charter is a delegation of power from the legislative body of the State. Whatever is by such a charter required to be done by the governing body of the municipality, must, so far forth as that municipality is concerned, be deemed to be legislative in character, and can only be done by such governing body itself. Hence it is that many matters may be referred by a charter to the action of such municipal body which are really administrative or executive in their character. In a given case the generality or the detail of the power as set forth in the charter must be carefully examined, and will furnish the guide as to what powers may and what may not be delegated by the governing body. From this it further follows, as we shall show later, that numerous cases relied upon as forbidding the claimed delegation of power in this case are, by reason of the different provisions of the statute or charter, of no authority in the case of a charter of the generality of that of New Haven. It is to be observed that the power given the board of aldermen with reference to sewers is incorporated with its power as to public squares, parks, streets, highways, gutters, drains, bridges, and walks; and the authority is an omnibus authority as to all of them: "to order, lay out, construct, repair and alter." Charter, § 132. This authority is most general in its terms. Unlike the authority contained in most of the charters cited in support of the plaintiff's case, it is quite lacking in detail as to what the board of aldermen must itself do. Except as to assessments made after the completion of the work, as to which no complaint is made, this section does not relate to procedure of the board, but simply confers general powers over the subject-matter. Wherever the legislature thought it necessary to prescribe a *655 procedure, it has, as will be shown later, done so, but in fact no procedure is prescribed with reference to sewers, other than as relates to sewer assessments. This generality of language leaves it optional with the board to determine the extent to which it shall go with reference to details. While undoubtedly the board could go into as much detail as it desired, the question is not what may it do, but what must it do under its general powers to act validly with reference to a sewer. The plaintiff contends that it is not enough to order the construction of a sewer by the director of public works in a named street between two named termini, such sewer to be of proper size and materials, with all necessary manholes, culverts, and basins; but it is claimed the board must itself determine as to the size, materials, manholes, culverts, basins, etc. The charter nowhere requires this, unless it can fairly be inferred from the words of general authority. When it is once legislatively determined that a proper sewer shall be constructed in a given street between two termini, all the rest becomes administrative and executive in character, requiring expert engineering skill for its ascertainment, which, under the charter, has been provided through the department of public works, its director and engineer. As to the matters referred, it is manifest that the board cannot be presumed to have any special knowledge of sewer construction upon which it can base the exercise of a judgment or discretion. The board has been by the charter left perfectly free as to how these subordinate matters shall be determined, and they are all within the exception noted in Dillon and the authorities quoted above.
Verbal analysis of the words conferring authority in § 132 of the charter, does not invalidate this conclusion. "To order" a sewer certainly does not. The board did definitely exercise what was the only necessary legislative *656
function, of determining whether there should be a sewer and where it should be. "Lay out" has with us no technical meaning as applicable to sewers. In Cone
v. Hartford,
"Construct" has a variety of meanings specially indicated by its synonyms: "build, compose, put together, erect, fabricate, form, frame, putting together, setting up." Standard Dictionary, word "construct." The underlying idea, as gained from these synonyms and as primarily used in this charter, is the physical performance of the work required to bring the thing ordered into existence either by itself, which ordinarily cannot be done, or by whomever this body may see fit to employ. On the whole, we are of opinion that by the New Haven charter the legislature, in the authority given as to the construction of sewers, although permitting, never intended to impose upon the board of aldermen the necessity of determining the physical features and constructive details of every sewer it might order to be constructed, but allowed the board to delegate these matters to those in whose skill it had confidence.
The real question is whether the matters under examination, "size, materials, manholes," etc., are administrative or executive in their character, as we have held, and we turn to some of the authorities in point. The theory as to delegation of legislative powers must necessarily be the same in the case of legislatures generally, both State and municipal, with this important exception: that in the case of municipal charters the granting legislature may arbitrarily make certain acts legislative, as to a given municipal body — in this case the board of aldermen — by imposing their performance *658
on that body, although upon general considerations the acts themselves may be entirely administrative or executive in their nature. In Lothrop v. Stedman,
The law with reference to the construction of this sewer was adequately stated when the board of aldermen said to the director of public works, "build a proper sewer between certain points on Middletown Avenue." The details were to be filled out by the responsible city officer, through the bureau of engineering, to which all details with reference to the sewers of New Haven are presumed to be well known, and which is presumed to have all of the engineering knowledge necessary to construct, care for, and manage sewers, and whose duty it is to carry out the orders of the board of aldermen. The size, material, etc., were to be "proper." The matters referred by the order to the director of public works are purely technical in their character, matters which a board a laymen is not competent to determine and which, except at great risk to the public welfare, must be referred to an engineer. As applied to this charter, we should say that the essential legislative function consisted in determining whether there should be a proper sewer in this street, and the determination of this matter was in no wise delegated to the director of public works. Technical rules are not, properly considered, the subject of judgment or discretion in the legislative sense. Whether or not they shall be applied to produce a certain result is a matter of judgment, and that judgment the board of aldermen exercised. How far the board shall go in specifying the technical rules and conclusions to be applied, would be a question of expediency for the board, and would depend entirely upon the skill and *664 the ability of the one ordered to construct. The order must be construed with the charter, and the reference to the duties of the director of public works and the departments under him, leaves it quite clear that the technical requisites of the construction of the sewer could be safely assumed by the board to be possessed by him. The propriety referred to in the order was not a legislative propriety, as to which there might be honest differences of judgment, but an engineering propriety, which is simply the application, to the construction of the sewer in question, of engineering rules as ascertained and applied through scientific knowledge of what would be required in a given set of circumstances and which cannot be varied by a legislative vote; as, for illustration, a legislative vote of a six-inch main when the watershed requires a twelve.
We say that many, if not most, cases cited to us in support of the plaintiff's contention, are, so far as the delegation under the general rule is concerned, of no particular consequence. They do not help to determine a case where the power is general, like that in the charter of New Haven. In those cases the question upon which the claimed unlawful delegation of power was concerned, arose under statutes and charters with reference to matters specifically referred to the governing board for its action. As we have already stated, if the legislature specifically requires the action of the governing board upon any particular matter, that makes it, so far as that charter is concerned, a matter of legislative discretion. The case of Bolton v. Gilleran,
We do not undertake to say that there is no case in which language may be found which will support the plaintiff's contention, but the cases cited by him do not go further than the general rule, and do not determine what is the difference between legislative discretion and administrative and executive power. A charter must be construed reasonably, and, so far as possible, to expedite and promote the ultimate purposes of the general welfare. If too technical an interpretation is adopted, it may, as in Bolton v. Gilleran,
If it be objected that this construction of the charter is too broad, the answer is that as to the other matters within the power of the board of aldermen, the charter, by §§ 78 to 81, makes quite elaborate provisions as to procedure with reference to the layout of any square, park, street, highway, bridge, or work, or the establishment of any building-line or discontinuance of any highway. Measures referring to these subjects are referred to the department of public works. Public hearings are held; surveys and layouts are prepared; assessments made by the bureau of compensation; maps and plans are drawn; and the report in detail is made to the board, which, after all necessary preparations, may accept the report and adopt the layout *668 or assessments, or modify the same. By § 82, referring to the construction or repair of sidewalks, curbs or gutters, they are made on the order of the board of aldermen "in the manner and within the time specified in the order." Sewers are omitted from these provisions. The only notice that appears to be required as to them is that after the sewer is completed, the matter of assessment is left to the bureau of compensation, which gives notice to those who may be affected. Whether rightly or wrongly, the charter confers upon the board of aldermen this power as to sewers in the simplest and briefest language, without calling for hearings or prescribing any details as to procedure, and without making the determination of any constructing engineering details the subject of its legislative action.
We are therefore of opinion that the orders of the board of aldermen described in the complaint are in conformity with the charter and do not violate the constitutional inhibition against the delegation of legislative power by the board of aldermen. This disposition of the matter makes it unnecessary to discuss the other points raised by the demurrer, and the demurrer is sustained for the reasons above stated.
There is no error.
In this opinion the other judges concurred.