New York & New England Railroad v. City of Waterbury

| Conn. | Jan 26, 1887

Pardee, J.

This is a petition for an injunction to restrain the defendant from constructing a highway intersecting the plaintiff’s railway track at grade; reserved, upon the facts found, for our advice.

In June, 1881, the court of common council of the city of Waterbury voted to lay out a highway to be called Burn-ham street, to cross the plaintiff’s railway at grade.

The charter of the city provides as follows:—“Every vote, resolution, order, etc., which passes either body shall be transmitted to the other, and if passed there shall also be sent to the mayor, who shall either approve it, in which case it shall become operative and effectual, or disapprove it, in which case he shall return it to the body in which it originated, at or before its next regular meeting, with a statement of his objections, and after such statement has been read in that body,” etc. The mayor did not in writing approve the resolution laying out the highway. The court below has found that “ it has never been the practice for the mayor to express Ms approval affirmatively in writing of any action, vote or resolution of the common council, except in reference to the general ordinances. But all acts, votes, resolutions and proceedings of the court of common council have been proceeded with upon the assumption or theory that all such votes, resolutions, acts and proceedings were approved by the mayor unless disapproved in writing by him. And in all instances where he did disapprove he has done so in writing.”

The mayor testified as follows:—“I was mayor in 1881 when the lay-out of Burnham street was adopted by the court of common council. Had I supposed it was necessary to sign my approval of such vote to make it valid, I should have done so, as I was favorable to and approved of such lay-out, and in fact I did not disapprove of the same. Said vote was not sent to me for approval, nor did I express my approval of the same to any one or in any way, to my knowledge or recollection.”

In 1883 the legislature passed an act which provides “ that hereafter no new highway or portion of a highway shall be constructed across any railroad at grade.”

In January, 1886, the defendant undertook to construct the highway across the plaintiff’s railway at grade. The plaintiff interrupted the work by a temporary injunction; it asks for a perpetual one.

Whenever, either by constitutional or legislative requirement the president of the United States, the governor of a state or the mayor of a city is required to approve an act of congress, or of a legislature, or of a court of common council, the word “approve” means more than the unexpressed mental acquiescence of the individual in the propriety of what has been done; it means that the officer, in his official capacity, as the guardian of the interests of a community, having in view its welfare, and not his personal wish or advantage, shall consider the proposed legislation and determine that it is proper, and make that- fact known to all men with absolute certainty, by some visible, unmistakable and enduring mark, to wit, by written declaration attested by bis signature. It is not enough that in the future when the question is made—is such an act of congress, of legislature or of common council binding upon the country, state or municipality, that it should depend for decision upon the memory and testimony of an officer as to what was his unexpressed thought, at a former time, concerning it. Such uncertainty would be unendurable, and, therefore, we must, assume it to be outside of the meaning of any constitution or law. The fact that the mayor omitted to approve in writing many other resolutions of the court of common council is no legal justification of his omission in the case before us.

Secondly. The plain purpose of the act of the legislature is to make possible the coming of the day when there shall not be in this state an intersection of a highway with a railway at the same grade ; to bring that day nearer by forbidding the addition of another to the many such then in existence. It means that although a highway may have been previously laid out, partially constructed and even built upon, if it has not actually been completed for public use across the rails of the railway, such crossing shall not thereafter be made. This peremptory arrest of the completion of a highway lawfully commenced is a seeming interference with the rights of individuals and of the public, but only in seeming. In fact such crossings are public nuisances dangerous to human life; and no man has a vested interest in the creation or continuance of such a nuisance; in the exercise of the power of protecting human life the legislature may at any time and without notice abate it or prevent its existence. If equity requires thereafter compensation to an individual, presumably he will obtain it. It is of no moment that the plaintiff had given to the city permission to construct the crossing; private contracts may not put limitations upon legislative power to protect life. If the crossing had been constructed upon the faith of such permission, and ill the absence of any prohibitory statute, the legislature by virtue of the same power could have ordered a removal on the next day. Burnham street failed of a legal lay-out by reason of the omission of the mayor to certify in writing his official approval of the resolution of the Court of Common Council to lay it out. If it had been legally laid out, the construction of any portion of it across the plaintiff’s railway at grade became illegal before it was accomplished, by reason of the act of the legislature referred to.

The Superior Court is advised to issue the permanent injunction prayed for.

In this opinion the other judges concurred.