Norwalk & South Norwalk Electric Light Co. v. Common Council, 71 Conn. 381

71 Conn. 381 | Conn. | 1899

Hamersley, J.

The power and the duty of the common council is confined to making orders necessary to the exercise of its direction and control over the placing, erection and maintenance of electric wires and fixtures in the city streets. Such orders may be general or specific, applicable to existing or to future conditions, relating to one corporation or to all persons. The council is not concerned with the rights of adjoining proprietors; if the law requires it to exercise its power of direction upon request of the electric light company, that duty is imperative, without reference to the terms the company has made or may make with adjoining proprietors. Castle v. Lawlor, 47 Conn. 340, 346. The motion to quash the alternative writ was therefore properly overruled.

The respondent sets up the same insufficient defense in its return. The return also alleges that the relator does not own the poles it uses and intends to use, and that it proposes to displace its present system of lighting by a different one. These matters possibly may affect the scope of any orders the council may find it necessary to make, but certainly cannot affect the duty to make them.

The return further alleges that pending this proceeding a city election has taken place, that the council to whom the alternative writ was addressed has ceased to exist, and that the new council has never refused to perform its duty, since no formal request has been made to it. The alternative writ was directed to the council, and was also directed to the individual members of the council by name and was served upon each; the council appeared and answered, and the individual members also appeared. It is no defense to the allegations of the alternative writ, that after this the composition of the council was changed; and such change furnishes no reason why a peremptory writ should not issue against the council, with directions for service on those persons who appear by the return to be members of the council at the time the peremptory writ issues.

The charter vests in the council all legislative power delegated to the city, and makes it for the most important purposes the representative of the municipal corporation. The council cannot sue and be sued as a corporation, but it has the same continuous and perpetual existence as the city. Its members remain in office until their successors are chosen and qualified. The mayor is always its presiding officer, the city clerk is always its recording officer. Its existence as a public board, with capacity to exercise the powers and perform the duties conferred and imposed upon it by law, is continuous and perpetual. Such a board must be subject, as a board, to the commands of the State. The prerogative writ of mandamus may run directly to the board; the individual members are dealt with as in the case of a corporation, for the purposes of punishment, if the command is disobeyed. It is a matter of practice and not of substance, when an act is commanded which can only be performed by a board as a public body, whether the alternative writ should be directed to the board directly or indirectly by naming all the members of the board, or to the board and the individuals composing it. When there is no controlling statute or rule of practice, the form of direction has been held immaterial. It is the better practice for the writ to run directly to the board. People v. Champion, 16 Johns. 61, 65; People v. Collins, 19 Wend. 56, 68; Glencoe v. People, 78 Ill. 382; Sheaff v. People, 87 id. 189, 195; People v. Getzendaner, 137 id. 234, 263 ; Wren v. Indianapolis, 96 Ind. 206, 213, 215; St. Louis County Court v. Sparks, 10 Mo. 118, 120; State v. Madison, 15 Wis. 30, 37; State v. Milwaukee, 25 id. 122, 135; State v. Wright, 10 Nev. 167; Commissioners v. Sellew, 99 U. S. 624, 625; Thompson v. U. S., 103 id. 480,483; Parker, Petitioner, 131 id. 221, 226. And it has been held that where a duty is to be performed by a number of officials having a single duty, although it may not be in the nature of a corporate act, the alternative writ may be directed to them by their official name without stating their individual names. Boody v. Watson, 64 N. H. 162, 192; Brown v. Rahway, 53 N. J. L. 156, 158.

The prerogative writ of mandamus is the direct intervention of the State to compel a person, natural or artificial, on whom the law imposes a public duty, to perform that duty. Fuller v. Plainfield Acad. School, 6 Conn. 532, 547; Farrell v. King, 41 id. 448, 453. If the duty is imposed on an individual holding a public office and can only be performed by the individual, the writ runs against that individual and will not run against his successor in office; but if the duty is a continuous one attached to the office, the writ will run to whoever holds that office. If the duty must be performed by several persons holding different offices, the writ runs to each and all. If the duty is a single duty which must be performed by a number of persons holding the same office, the writ may run to them by their official name or by their individual names. If the duty must be performed by a corporation or a quasi corporation, the writ runs to the corporation. If the duty must be performed by a public body the members of which cannot act individually, hut can only act by vote when assembled in regular meeting in accordance with the law constituting them such public body, the writ runs to the public body by its corporate name. In other words, the determination of the person whose specific duty it is to perform the act commanded, determines the person to whom the writ must run. The alternative writ and the peremptory writ must run to the same person. But there is this distinction. The function of an alternative writ is to elicit an answer showing cause why a peremptory writ should not issue. When, therefore, it is directed to a corporation, or to a public body not formally incorporated but which is under legal obligation to perform duties similar to those imposed upon corporations and which must be performed in a similar manner, there is no need of naming the persons who represent the corporate body or compose the public body; service, however, must be made on each individual or on the presiding or other officer, according to the rules of practice. But the function of the peremptory writ is to command immediate performance of a specific act and to lay the foundation for the punishment of disobedience. It is, therefore, essential that the writ should be served on the individuals who may be punished if the command is not obeyed. This distinction between the alternative and peremptory writ is indicated in an opinion of Justice Bbadley in Hitchcock v. Galveston, 4 Woods, 308, 309, and underlies the whole law of mandamus.

This respondent is a public body; none of its powers can be exercised by its members acting individually, but all must be exercised by its members convened according to law as a public body. When the State creates such a body and imposes upon it duties which cannot be performed by an individual or any number of individuals, but only by that body, it necessarily authorizes its writ of mandamus to run to the public body by its legal designation.

The allegations in the return of changes in the membership of the council were, therefore, immaterial, and could not prevent the issue of a peremptory writ directed to the council, as the alternative writ had substantially been directed. State's Atty. v. Branford, 59 Conn. 409. The demurrer to the return was properly sustained.

These are the only errors assigned in the appeal; and it is unnecessary to consider any possible errors of form which have not been assigned. There may be a question whether the statute under which this proceeding is brought, imposes on the council an imperative duty to make orders relative to the placing and erection of the structures in question, or simply confers a power of control and direction to be exercised or not, at discretion. But inasmuch as this question was not raised below nor stated in the reasons of appeal, and as the respondent admits its duty to act if the reasons it has assigned for not acting are insufficient, and as it clearly appears to be for the interest of the respondent as well as for the relator that the respondent should act at once, we do not consider this question.

There is no error in the judgment of the Superior Court.

In this opinion the other judges concurred.