Lyon v. Rice

41 Conn. 245 | Conn. | 1874

Lead Opinion

Carpenter, J.

The statute authorizes the Superior Court to issue writs of mandamus, and proceed therein and render judgment according to the course of the common law. At common law the party interested in having an act done, made demand to the party upon whom the duty devolved to do the act. Upon his refusal he made application, supported by affidavits, to the court for a rule to show cause why a writ should not issue, which was served upon the defendants. Upon the hearing, if it appeared to be a case for the writ, the court made the rule absolute, and thereupon, if the right to it was clear and indisputable, issued a peremptory writ in the first instance; otherwise issued a writ in the alternative. If a peremptory writ issued, the only return the defendant was permitted to make to it was that he had strictly complied with it; if the alternative, he might return a compliance, or show cause why he had not complied. In the latter case, if tlie cause shown was sufficient, no further proceedings were had; if insufficient, a peremptory mandamus issued. This we understand to be the common practice now; but in some cases the writ in the alternative form will issue in the first instance.

In this case no writ ever issued. A rule to show cause was granted, the defendants demurred to the application, and the court adjudged the matters therein contained insufficient and dismissed the proceedings.

The several questions arising in the case will be briefly considered.

1. "We think it was the duty of the selectmen to have called a meeting of the town as requested. The statute provides that “ special meetings may be convened when the selectmen shall deem it necessary, or on application of twenty inhabitants qualified to vote in town meeting.” The last clause of this sentence becomes inoperative if the discretion of the selectmen extends to it, as the defendants suppose. The statute evidently intended to give to twenty voters a right to ask for a town meeting for any legitimate and proper purpose. If so, it imposes upon the selectmen a corresponding duty.

We also think that the object of the proposed meeting was legal and proper. The statute makes the first selectman the agent of the town in the absence of any special appointment. Gen. Statutes, tit. 7, sec. 238. One object of this meeting was to make a special appointment, it nowhere appearing that one had been previously made. Cases may be imagined in which the selectmen would be justified, perhaps, in refusing to comply with such a request, but this is not one of them.

2. The next objection is that the request signed by the plaintiffs specified the day and the hour for the meeting to be held. We do not think it was competent for them to dictate to the selectmen in that respect, and that they might with propriety have disregarded that part of the request. But we are not disposed to apply the strict technical rules which govern writs of mandamus to applications of this kind. They are usually prepared by non-professional men, and shbuld be favorably considered to promote, and not defeat, the end aimed at. The object was clear—a town meeting for the purpose named. The precise time was not material. Had the selectmen complied with the substance and spirit of the request, and called a meeting at any reasonable time, there could have been no complaint.

3. It is next objected that the application is for a writ, directed, not to the board of selectmen, nor to all the members of the board, but to two out of the three members, commanding them to join with the third in doing the act required. A writ issued in the form contemplated by this application would undoubtedly be bad at common law. Tap ping on Mandamus, 314. If all the selectmen had been made parties, the application, according to the case of Fuller v. Plainfield Academic School, 6 Conn., 532, would have been good. As one of the selectmen is not a party, no writ could lawfully issue against him, nor against the board of which he was a member; and, as none could properly issue against the other two without him, it follows that the application was properly dismissed.

4. The remaining objection is, that this proceeding is not in the name of the proper party. The same parties who signed the petition for a special town meeting, now seek to enforce their request by proceedings instituted in their own name. The subject matter of the proposed writ concerns all the inhabitants of the town alike. The plaintiffs have no interest separate and distinct from others. The authorities, with no exception that we are aware of, agree in holding that in matters of public concern no person not specially interested can maintain a suit in his own name. It is quite clear therefore that in such cases this writ can only issue in the name of the state as plaintiff. As the state is not made a party in this case, we think the application was properly dismissed on that ground.

Whether the prosecuting officer alone may apply for and prosecute this writ in a case like this, or whether it may be prosecuted by any inhabitant of the town as relator, is a question on which the authorities differ. It is held by some that any person having a general interest in the subject matter may be a relator and prosecute this writ in the name of the state. The People v. Collins, 19 Wend., 56; Hamilton v. The State, 4 Ind., 452; State v. County Judge, 7 Iowa, 187; Hall v. The People ex rel. Rogers, 57 Ill., 307. By others it is held that it can only be prosecuted by a public officer. The People ex rel. Drake v. Regents, &c., 4 Mich., 98; Heffner v. The Commonwealth, 28 Penn. S. R., 108; Bobbett v. The State, 10 Kansas, 9;. Linden v. Alameda County, 45 Cal., 6; Sanger v. Commissioners of Kennebec County, 25 Maine, 291; Bates v. Overseers of the Poor of Plymouth, 14 Gray, 163. A determination of this question being unnecessary in the present case, we express no opinion upon it.

There is no error in the judgment of the court below.

In this opinion Park, C. J., and Poster, J., concurred.

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Concurrence Opinion

Phelps, J.

I fully concur with the majority of the court in the opinion that the selectmen of a town are required to call a special meeting of the town on the petition of. twenty inhabitants qualified to vote in town meetings. This is undoubtedly true as a general rule, and no discretion is vested in the selectmen to deny the petition unless the object of it is unlawful, or manifestly frivolous, or otherwise improper, I also agree that the fact that the petition stated a day and hour for the meeting to be held, was no reason for the refusal by the selectmen to call the meeting. They were not bound to a literal compliance with the request, and might have called it at any other reasonable time. The petitioners might have asked for a meeting to be called within a reasonable time without naming it, but that would have enabled a board, who were disposed to disregard the petition, to set up pretexts for .not calling it at all, or ,for making unnecessary and unreasonable delay.

But I am not satisfied with the conclusion to which the court have come with reference to the sufficiency of the application in its designation of the party against whom it is directed. I admit that all the selectmen should have been joined, but think that was substantially done. That it was intended was obvious. The board consisted of three, one of whom was ready and desirous to call the meeting asked for by the petitioners, and the application was for an order requiring the other two to unite with him in doing it. In a matter of public interest extreme technicality should not be permitted to excuse official delinquency where the meaning of the language used is clearly apparent.

I am also unprepared to concur in the views expressed with reference to the want of legal capacity and right in the petitioners to maintain the application. It is undoubtedly true that they must have an interest in the subject matter distinct from and beyond that of the public generally. But that need not be a pecuniary interest. The applicants were the petitioners for the meeting and the parties on one side to the controversy. Their petition was disregarded and denied, and as they claimed wrongfully. They were endeavoring through this application to vindicate the right of petition in respect to a subject matter in which we all agree they were in the right and the selectmen in the wrong—that is, the right to have a public meeting of the town to act upon and determine certain questions which were properly proposed to be submitted to that meeting. I think that is sufficient to confer upon them a proper legal status as applicants for the remedy sought.

I beg leave for the foregoing reasons, very briefly expressed, to enter my dissent.

Pardee, J., concurred in the views expressed by Judge Phelps.