Hine v. Stephens, 33 Conn. 497

33 Conn. 497 | Conn. | 1866

McCurdy, J.

Philo Beecher claimed to have received certain injuries to his person and property through the defective condition of a road which it was the duty of the town of Naugatuck to keep in repair, and demanded a large sum in damages. The selectmen disputed the liability of the town. The town at a meeting, when the subject had not been mentioned in' the warning, voted that the selectmen should be instructed to settle with him on such terms as they should deem to be for the best interest of the town. The selectmen submitted the matter in dispute to arbitrators, who awarded in his favor. The petitioner Hine consented to the reference, gave bonds for the town, and acted as its counsel on the trial. There is no averment in the petition and it is no where intimated that the demand was unjust, or that the conduct of the parties or arbitrators was unfair, or that the damages are excessive. It appears either directly or by inference that the selectmen and treasurer and the town itself acquiesce in the result and will pay the award unless restrained.

The ground of this application is that the selectmen had no power to make the submission. In the case of Griswold v. North Stonington, 5 Conn., 367, it was held that selectmen Jzad no such authority. It is well known that the court which made that decision were emphatically strict constructionists in relation to the power conferred by statute upon public officers, and somewhat more liberal views on the subject have since been entertained. Chief Justice Hosmer, jn giving the opinion, relies very much upon the precise language of the statute then existing as defining and limiting their power. A very prominent reason which he gives in support of the decision is, that “ the selectmen are not authoi’ized to prosecute szzits in the name and behalf of the town.”

But in contradiction of this it was held in the case of Union v. Crawford, 19 Conn., 331, that “ the selectmen of a town, by viz’tue of their general powers as selectmen and without the delegation of any special authority for the purpose, have a right to prosecute and defend suits to which their town is a party.” Jzzdge Waite says that the statute provides that “ it shall be their duty to superintend the concerns of *tlze town, adjust and settle all accounts against the same,” &c. “ Now if a suit in which the town is a party is one of the concerns of that town it falls literally under the superintendence of the selectmen. They alone have power to settle and adjust the matter in controversy.” “ The selectmen in superintending the concerns of the town, in settling and adjusting claims and in drawing orders for payment, act but as agents of the town.” He lays much stress upon the change between the terms of the statute as it formerly existed and as it stood after the revision. He says, “ Then they were appointed to take care of and order the prudential affairs of their towns. The statute as revised in 1821 makes it their duty to superintend the concerns of the town, thus conferring upon them powers in very general and comprehensive terms.”

Although in that case the suit was for supplier to a pauper, the principle was laid down generally as to the powers of selectmen to settle and adjust matters in controversy. The court say, “ When we consider the many suits to which a town is exposed in relation to its bridges, its highways and its paupers, it can hardly be supposed that the legislature should have intended to leave them without agents at all times empowered to defend their rights.” The power to settle in a highway matter is placed upon the same footing as in a pauper case.

It is however said that this authority of the selectmen is a personal trust which they cannot delegate to others. But if they have this power to settle the mode may be discretionary, and taking the opinion of men who are presumed to be intelligent and impartial as the basis of their action is only a mode of settling and adjusting a claim. They adopt the decision as their own judgment and the terms become theirs.

There is no more danger to the town from their submitting a matter to arbitration than from their exercise of any other power. The avoiding of a lawsuit by a reference, and thereby escaping the delay, the expense and the risk of a jury trial, is in most cases eminently judicious. The trust is no more personal than that of an administrator, a conservator or a guardian, *yet all these officers may submit matters within their charge to arbitration. Alling v. Munson, 2 Conn., 691, 696; Hutchins v. Johnson, 12 id., 376; Weed v. Ellis, 3 Caines, 253.

For these reasons we incline to the opinion that selectmen have the authority in question.

But there is another ground upon which we think this petition should be dismissed. The remedy by injunction is u summary, peculiar and extraordinary.” An injunction. “ ought not to be issued except for the prevention of great and. irreparable mischief.” It “ is not ex debito justicies for any injury threatened or done to the estate or rights of a person, but the granting of it must always rest in sound discretion governed by the nature of the case.” Enfield Toll Bridge Co. v. Connecticut River Co., 7 Conn., 50 ; Bigelow v. Hartford Bridge Co., 14 id., 565 ; Whittlesey v. Hartford, Providence and Fishkill R. R. Co., 23 id., 421.

It does not appear that there has been any wrong or injury to the town. But an injunction would be productive of great hardship and injustice to the party in whose favor the award was made. He has acted in good faith and would be estopped by the award. He cannot be restored to his position before the reference. No proposition is made to refund his expenses, and he would be unable to recover them. His testimony may be lost. The town has taken its chance of a decision in its favor. It does not now oppose the result. Two individuals (one of whom at least should be estopped) resist upon the ground that paying the sum awarded would increase their taxes. What would be the amount of the increase is not apparent, but it is safe to suppose that the injury would not come under the head of “ great and irreparable.”

Under these circumstances it can hardly be expected that a court of equity should interfere in a matter which is substantially adjusted and plunge the town into a lawsuit.

We think there is manifest error in the judgment of the superior court.

In this opinion the other judges concurred.