69 Conn. 576 | Conn. | 1897
Lead Opinion
The Act of 1898
Can such powers be conferred on the Superior Court? The limitation of their exercise to cases where there has been a prior failure of a municipal board to act, cannot affect the principle involved. If the legislature can confer the power in a limited class of cases, by calling an original application for its exercise an “ appeal.” it can confer the power in all cases, without limitation. (This court has said in Brown v. O'Connell, 36 Conn. 432, 446 : “No judicial power is vested by the Constitution in the' General Assembly, either directly or as an incident of the legislative power, and the General Assembly cannot confer it. . . . It was one of the objects which the people had in view, in framing and adopting the Constitution, to divest the General Assembly of all judicial power. . . . While the entire legislative power is vested in the General Assembly, the judicial power is separated from it and vested in the courts ‘as a separate magistracy.’ It is obvious . . . that the judicial power is not conferred by the General Assembly, but vests, by force of the Constitution, in the courts. ... It was therefore competent for them (the legislature) to provide for the organization of the court in question (a city police court), and to define the jurisdiction it should possess; and when so constituted, the judicial power of the State vested in it, by force of the Constitution, to the extent of the jurisdiction so defined.” In an opinion by Judges Hinman, Sanford, Butler and Dutton, the Constitution is thus defined: “ The Constitution of the State, framed by a convention elected for that purpose and adopted by the people, embodies their supreme original will, in respect to the organization and perpetuation of a State government; the division and distribution of its powers; the officers by whom those powers are to be exercised; and the limitations necessary to restrain the action of each and all for preservation
It is claimed that Wheeler's Appeal, 45 Conn. 306, 313, recognizes a sovereign power in the legislature, not derived from the Constitution, in addition to that embraced in the grant of legislative power, and unrestrained by the division of the powers of government into distinct departments; and this case is relied on as justifying the legislation now in question. It is unnecessary to discuss the precise point determined by the judgment in Wheeler's Appeal; but the ground on which the opinion seeks to justify the judgment is erroneous. It is this: The opinion says it is “ obvious, from the past history of our own jurisprudence and long continued legislative practice, that we have reserved a much larger field for legislative action than has ever been recognized ” in other States. This divergence is due “in part, and perhaps principally, to the very extensive powers which were origin ally-conferred on the General Assembly by the charter of Connecticut.” Under this charter the General Assembly exercised executive and judicial functions. Upon the adoption of the Constitution of 1818, which divided the powers of Government, it was logical to hold that all judicial functions of the General Assembly were at an end; and this claim was made at an early date, but not accepted by this court. Starr v. Pease, 8 Conn. 541, 547; Day v. Cutler, 22 id. 625; Booth v. Woodbury, 32 id. 118, 126. “If, then, an Act of the State legislature is not against natural justice, or the
Such a doctrine is subversive of the American idea of conk stitutional government. It affirms that the checks established by the division of governmental power have no existence in this State; that when the Constitution says “the powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy,” it means,—“The General Assembly shall exercise every power of sovereignty which it is not forbidden to exercise by some affirmative and express provision of the Constitution; ” that the mandate, “ the legislative power of this State shall be vested in two distinct houses ... to be styled The General Assembly,” does not mean what it says, but means “ the Governor and Council and House of Representatives in General Court Assembled,” shall continue, under the style of “ The General Assembly,” to exercise the supreme power of the State in all matters whatever, not forbidden by some affirmative and express provision herein contained; that the mandate, “the judicial power of the State shall be vested in a Supreme Court of Errors, a Superior Court” etc., means nothing, or means, “such portion of the judicial power as the General Assembly shall not exercise by itself or other agencies.”
This doctrine originates in an expression in the opinion of Daggett, J., in Starr v. Pease, supra (Hosmer, C. J. and Btssell, J., concurred in the judgment, and Peters, J., dissented),—an expression not necessary to support the judgment rendered, for the validity of a legislative divorce, the matter in dispute, must rest on the claim that it is a law fixing a status, on grounds of public policy, and is not a mere
In some respects the views of those engaged in framing a Constitution, as to its meaning, are entitled to peculiar regard ; but not in all respects; and especially not as to the extent of the radical change involved in the adoption of a written Constitution. Such a change brought into existence an absolutely new. branch of jurisprudence which judges, trained under a different and antagonistic system, were not peculiarly fitted to comprehend. In Starr v. Pease, however-, the only judge who was a member of the convention of 1818, emphatically dissented. The error of Judge Daggett was fundamental; it was based on the denial of the essential meaning of a written constitution.
Prior to 1818, the whole sovereign power was exercised by the people, unrestrained by anything except their present will, through a body of magistrates chosen annually and deputies
It was this new form of government that the people demanded and established in 1818. It was this new form of government that the advocates of the so-called charter government for thirty years successfully opposed. They claimed that they had a constitution, because they did not realize what a constitution meant, or were afraid of the restraints it imposed. The idea of a constitution was centered in the separation of judicial and legislative powers, and the grant of each power to a distinct magistracy. On this the fight for change 'of government was largely made.
When the legislature that called the convention of 1818
There was then a democracy exercising supreme power through deputies chosen semi-annually, but no Constitution of civil government in the American sense of that term. In these deputies, when assembled in General Court, consisted “the supreme power and authority of this State;” when so assembled they had “ the power and voice of all the freemen deputing them,” i. e., the whole power vested in the sovereign, the people. By virtue of this power so deputed, they recommended to their sovereign to abolish the existing form of government, to establish a new form of civil government, and to appoint delegates to frame a constitution for that purpose, which, when adopted by the sovereign, should be a permanent grant of his power to the agencies therein named, under the limitations therein expressed. This again was declared when the convention met and “ Resolved, that this Convention do deem it expedient to proceed at this time to form a Constitution of civil governmentfor the people of this State.” The Constitution adopted declared that the people of Connecticut, grateful for having been permitted to enjoy a free government, i. e. a democracy, in order more effectually to
The convention adopted the Constitution on September 15th; the people approved and ratified it, and on October 12th, 1818, it became the Constitution of civil government of the people of Connecticut. On that da}' and thereafter all powers of government were exercised only by virtue of the authority granted in that instrument; it was “ the original supreme will of the people ” from which all authority was derived. This clearly appears from § 3 of Art. X, by which the existing rights and duties of corporations are established and confirmed, subject to the regulations contained in the Constitution; officers previously commissioned are authorized to exercise their offices until the first of June following; laws not inconsistent with the Constitution are continued in force until altered or repealed in pursuance of the Constitution ; and the General Court to be formed in October is granted all powers not repugnant to the Constitution, which they now possess, until the first Wednesday of May following. When it is remembered that the last session of the “ General Court ” had no power whatever, except that granted by the Constitution, the theory that this General Court handed over to the General Assembly established by the Constitution, undefined sovereign power not derived through that instrument, appears in its naked absurdness. No declaration could be more clear and specific: that on October 12th, 1818, the democracy, first established in 1637, ceased to exist, and the General Court or assembly through which the powers of that democracy had been exercised, was then abolished, and every power of government thereafter exercised found its authority only in the Constitution of civil government then adopted by the people as the supreme law of the State.
This result was recognized by those who had opposed, as well as by those who had advocated, the revolution. Wil
The forms of procedure under the Constitution were so similar to those under the former government, and were so largely administered by men who were not only fixed in the old ways of thought but opposed to the radical change involved in the adoption of a Constitution, that it is not strange that some legislation should pass unchallenged, and dicta of judges pass current, clearly contrary to the supreme law. But the form of government established in 1818 cannot be destroyed in that way. This change in the structure of government was a pregnant fact which any one long settled in the belief that an exercise of the whole unrestrained powers inherent in an absolute democracy, through a body of delegates frequently chosen, furnished the best organic plan for ruling a commonwealth, might well find it difficult to accept in its full significance. The views of Judge Daggett, as expressed in Starr v. Pease, on the effect of a constitution, are those of an able and thoughtful jurist; but we find it more easy to reconcile them with the traditions in which he had been educated, and the conditions existing during the greater part of his long and extensive practice at the bar, tlian with the plain provisions of the Constitution itself. It was the expression of those views that led up to the dictum in Wheeler's Appeal. The other two cases cited do not support the dictum. Day v. Cutler was an action on a promissory note, which involved the validity of a legislative divorce. Ellsworth, J., assumed the validity of the divorce, and held the note given in connection with it to be valid, and
The incapacity of the legislature to execute a power which is essentially and merely a judicial power, and of the judiciary to execute a power which is essentially and merely a legislative power, as well as the limitation of the meaning of legis
This court has not hesitated to affirm and apply the principle here involved. Brown v. O’Connell, Opinion of the Judges, In re Clark, State v. Conlon, supra. We believe B^eefer’s^Appeaf to__be the only case that necessarily may involve a different-view: but, for the reasons given, it is powerless to change the principle. The Supreme Court of the United States has uniformly held that a law conferring on the courts a power which is not a judicial power within the meaning of the Constitution, is unconstitutional, and that such power cannot be lawfully exercised by the courts. Note by court on U. S. v. Todd, 13 How. 52, 53; Ex parte Siebold, 100 U. S. 371, 393.
The power which Judge Ball was asked to exercise in the present case does not seem to us to be a judicial power within the meaning of our Constitution. It is claimed that the difficulty of defining the powers of government renders impracticable the enforcement by this court of their division, and so makes nugatory the most important command of the Constitution. A difficulty attends the application of a general principle to particular cases, and sometimes the more vital the principle the greater the difficulty. This was felt when the United States Supreme Court first dealt with a conflict between a law of Congress and the Constitution; it was felt still more when the court began to apply the general principle that a State law dealing with internal police may to a certain extent validly occupy a field of legislation within the exclusive jurisdiction of the United States. It is a peculiarity of the essence of constitutional government that the judicial department must deal with such difficulties;
Under our State Constitution appointments, other than those whose mode is prescribed, are governed by the division of governmental powers. This question has never come before us directly; it was incidentally considered in some recent cases in connection with the law allowing an appeal from the action of county commissioners in granting licenses. In Smith's Appeal, 65 Conn. 135, 139, we held that the statute required the county commissioners to select as the recipient of a license, one having “a personal fitness to perform the quasi public duties required by law of a licensee,” i. e. one who is shown to be suited or adapted to the orderly conduct of a business which the law regards as dangerous to public welfare unless conducted by a carefully selected person duly licensed, whose fitness to the legal requirement must be determined in view of the statutory regulations. In Hopson's Appeal, ibid. 140, we held that the selection or appointment of such a licensee was a means apparently appropriate both
Such proceeding by appeal is an anomalous one; it confounds process for invoking the exercise of judicial power by way of ordinary judicial proceedings in protecting an individual against the illegal acts of a public officer, with the use of the power of appointment as a means incident to the full exercise of judicial power. It is evident that the justification of such judicial appointments must be found in the circumstances peculiar to each case.
While the necessity and right of each department to use the means requisite to its unfettered operation, is clear, it is equally clear that when one department not only uses the means appropriate to another, but uses them for the purpose of executing the functions of that other department, it is not in the exercise of its granted power. The legislature by judicial means may find the facts showing that a charter subject to repeal, ought to be repealed, and act in the exercise of its legislative functions. Crease v. Babcock, 23 Pick. 334, 344. But when by the same means it attempts to adjudge the forfeiture of a charter not repealable, it acts in the exercise of a judicial function, and in excess of its power. This distinction is illustrated in the decisions of the United States Supreme Court dealing with legislative regulations of charges by railroad companies. The regulation of such charges is held to be distinctively a legislative function which may be delegated by the legislature to a subordinate legislative or administrative body, but if this subordinate body, or the legislature, exceeds its powers, and a person is thereby injured
But it is equally certain that the judicial power does extend to the protection of every right of person or property that may be invaded by a municipal council in the unlawful exercise of the powers conferred by the Act of 1893. This judicial power may be called into action by any appropriate process. The Act of 1895 provided, among other things, that an aggrieved person might appeal from an order made by a municipal council in pursuance of the Act of 1893; that such appeal should be a petition to the court which should specifically state the portion of the order appealed from and the reasons, and be served on the council, and that such appeal should be tried by the court and appropriate judgment rendered. Construing this Act as we have construed other Acts authorizing appeals from the action of legislative and administrative boards, as providing a nondescript kind of process intended to serve the combined purposes of a writ of injunction, certiorari, and mandamus, or of any other process for invoking the judicial power to determine a legal injury complained of, we substantially held in
The so-called “ appeal ” in this case is not a process to invoke the judicial power; it is simply an application to the Superior Court to exercise a legislative function; the conditions on which the Act of 1895 authorizes such an applica
We have assumed, as was assumed in argument, that the Act of 1895 purports to confer the powers in question upon a judge in his exercise of the judicial power vested in the Superior Court; and does not purport to appoint for the exercise of the powers an executive officer designated by an official title instead of by name. If the latter were true, the judge would be at liberty to accept or decline the appointment, and this court would have no jurisdiction to review his action. Legislation authorizing process (mostly under the misleading name of “appeal”) for invoking the judicial power, to be returned to a judge of the Superior Court, or to the “Superior Court or any judge thereof,” has produced some confusion in respect to the nature of the power thus exercised. This court has decided that a “ writ of error ” (which formerly, in connection with the auxiliary means of reservation, was the only process for calling into action its jurisdiction) does not lie without a judgment or an award in 1 the nature of a judgment; Williams v. H. & N. H. R. R. Co., 13 Conn. 110, 118; and also that this court has cognizance only of writs of error from the Superior Court. Green v. Hobby, 8 Conn. 165; Humphrey v. Marshall, 15 id. 341, 345; Trinity College v. City of Hartford, 32 id. 466, note. But these decisions did not hold that judicial power could be exercised by a judge of the Superior Court only when holding a stated session of court. The legislation which followed the decision in Trinity College v. City of Hartford, providing for a proceeding in error to this court from the final judgment rendered by a judge of the Superior Court in the exercise of his jurisdiction, could have no application unless such judgments are rendered in the exercise of the judicial power vested in the Superior Court. In Clapp v. City of Hartford, 35 Conn. 66, 73, 220, 222, decided shortly after the enactment of this legislation, language is used indicating that a judge in such case does not exercise that power, and this language is followed in the dissenting opinion in Central Ry. and Electric Co.'s Appeal, 67 Conn. 228. But such views cannot be main
In no way has the confidence of the people in their Superior Court been more clearly shown, than in the increasing number of instances in which special process has been provided for obtaining in a summary manner its aid in protect
There is error in the judgment complained of, and it is reversed.
In this opinion the other judges concurred, except Baldwin, J., who dissented.
Section two of Chap. 169 of the Public Acts of 1893, reads as follows: “ Sec. 2. Whenever any railway company shall have been chartered by the general assembly of this State for the purpose of operating street railways in any town, city or borough, or whenever any such corporation already organized has been, or shall be given, the right to lay additional tracks in any such town, city or borough, or whenever any street railway company shall desire to change its motive power, before such company shall proceed to construct such railway, lay additional tracks, or change its motive power, it shall cause a plan to be made showing the highway or highways, street or streets, in and through which it proposes to lay its tracks, the location of the same as to grade and to the center line of said streets or highways, such change or changes, if any, as are proposed to be made in any street or highway, the kind and quality of track to be used and the method of laying the samé, the motive power to be used, in propelling its cars, and the method and manner of applying the same,(which plan shall be presented to the mayor and court of common council of any such city, the selectmen of any such town, or the warden and burgesses of any such borough, within their respective jurisdictions, who shall thereupon, upon public notice, proceed to a hearing of all persons interested therein, and after such hearings may accept and adopt such plan, or make such modifications therein, as to them shall seem proper, and shall, within sixty days after the presentation of such plan to the local authorities, notify said company in writing of their decision thereon, and of such modifications therein as they may deem proper. The refusal or neglect of any such local authority to notify said company of its decision within said period of sixty days as aforesaid shall be deemed to be a refusal to approve and accept said plan as presented by said company. Nothing in this act shall be construed so as to prevent such street railway company from presenting to such local authorities a plan or
Section one of Chap. 2S3 of the Public Acts of 1895, is as follows: “Sec. 1. Whenever the warden and burgesses of any borough, the mayor and common council of any city, or the selectmen of any town shall make, pass, or render any decision, denial, order, or direction with respect to any matters relating to street railways which, by virtue of any public or private act or resolution, now are, or may hereafter be, within the respective jurisdictions of such warden and burgesses, mayor and common council, or selectmen, any street railway company affected thereby may appeal from any such decision, denial, direction, or order within thirty days from the service of notice upon such street railway company of the rendition, máking, or passage of such decision, denial, direction, or order, to the superior court, or any judge thereof; such appeal shall be by petition to such court or judge, and shall state specifically the portion or portions of such decision, denial, direction or order appealed from, and the reasons of such appeal; and such court or judge shall order such notice as may be deemed reasonable to be given to such selectmen, mayor and common council, and warden and burgesses of the time and place of appearance in answer to such petition, and upon the time fixed for appearance and answer, or as soon thereafter as said court or judge shall order, such appeal shall be tried by said court or judge, and said court or judge shall make such orders in reference to said matters appealed from as may by it or him be deemed equitable in the premises, and the decision of said court or judge shall be final and conclusive upon the parties. And whenever such warden and burgesses, mayor and common council, or selectmen shall, under the provisions of section two of chapter clxix of the public acts of 1S93, be deemed to have refused to approve and accept any plan presented by any street railway company, said street railway company shall have a like right of appeal therefrom to said superior court, or any judge thereof; and said court or judge shall have the same powers with reference to said plan and the acceptance or modification thereof that said municipal authorities would have had under the provisions of said act, and may make all such orders with reference thereto as may be deemed equitable.”)
Dissenting Opinion
(dissenting). I concur in the view that divorces may be granted by the General Assembly, in cases where no court has jurisdiction to act, and that the judgments in Starr v. Pease, 8 Conn. 541, 547, and Day v. Cutler, 22 id. 625, can therefore be supported. I also concur in overruling the decision in Wheeler's Appeal, 45 Conn. 306, but do so upon the ground that the legislation which was there in question assumed to grant to a particular person a special and exclusive privilege from the community, of applying for extraordinary judicial relief, as to a particular cause of action, in derogation of the general laws. I dissent, in'other respects, from the judgment and opinion of the court.
The whole legislative power of the State is vested in the
One of these restrictions is the subject of Art. II, , “ Of the Distribution of Powers.” As originally reported to the constitutional convention by the committee charged with the duty of preparing the draft of a constitution, this article read thus:—
“ Article Second.
“ Distribution of Powers.
Ҥ1. The powers of government shall be divided into three distinct departments, and each of them confided to a separate body of magistracy, to wit, those which are Legislative, to one; those which are Executive to another, and those which are Judicial to another.
“ § 2. No person or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.”
This article, except for some merely formal alterations in the first section, was a copy of one adopted by Mississippi in the preceding year. 2 Poore’s Charters and Constitutions, 1056. Objection was made in our convention to the second section, and ten days later that was struck out, without a division. Journal of the Const. Conv. of Conn. pp. 78, 55.
This seems to me clearly to evince an intention not to attempt to limit the functions that might be imposed upon those holding a place in any particular one of the three magistracies, to such as should be strictly incident to their special department. It was sufficiently implied from the first section, in connection with the three following articles, relating to the legislative, executive and judicial departments, that no legislative power should be exercised except by the Gen
There are powers of government which, in one sense, are, as the case may be, legislative or judicial, and in another sense are not. The powers ordinarily granted to municipal 'corporations to regulate their local affairs and pass by-laws or ordinances, are of a legislative character. Such ordinances have, within their proper sphere, the force of law; but no one would contend that they are void because not passed by the General Assembly. The rules of practice and pleading prescribed by the judges of the Superior Court from time to time are also law as to the cases to which they apply; but( the legislative action from which they proceed is really made by the statute which authorizes them an incident of judicial power. The jurisdiction long exercised by our courts with respect to the layout of new highways, is of an administrative quite as much, to say the least, as of a judicial nature. The General Assembly might itself give such relief, and sometimes does. State v. Williams, 68 Conn. 131. It might confide these functions to an administrative board, like the railroad commissioners. It can give an appeal from such a
Our statutes were revised in 1821, three years after, the adoption of the Constitution, by a very able commission, headed by Chief Justice Swift. They fully appreciated the great revolution that had been accomplished by the constitutional distribution of the powers of government. Rev. of 1821, p. 150. Part of their task was to weed out all existing legislation that was inconsistent with it. Nevertheless this Revision retained the old provisions authorizing the County Courts to lay county taxes, and added one charging them with the duty of taking care of, letting, selling or buying, county property, at their discretion (pp. 141, 250) ; gave any two justices of the peace in any town power to make rules for confining or killing dogs, when necessary for public safety (p. 179); authorized any justice of the peace to commit a witness who refused to answer any proper question put to him by grand jurors, meeting as a court of inquiry (p. 260); and forbade tanning, except by persons who had proved their skill to the County Court and received a license from it for the purpose (p. 308).
Our statutes, since the Revision of 1821, have contained continually increasing grants of jurisdiction to our courts and judges over matters of administrative procedure. They rest, it seems to me, on solid grouud of public convenience and practical necessity, and if it be claimed, as in this case, that
Courts may properly be called upon to aid administrative tribunals in the exercise of their powers, whenever there is need of judicial relief. The dignity and independence of the judiciary is in no way impaired by making it ancillary, in such cases, to the work of another department. Interstate Commerce Commission v. Brimson, 154 U. S. 447, 487.
The applicant in this case holds a franchise from the State for the construction of a railway in certain streets in the city of Norwalk. The general laws provide that in such a case the city authorities, or the Superior Court, or a judge thereof, on appeal, shall first approve the plan of construction, and that a neglect by the city either to approve or disapprove, within a time specified, shall be deemed equivalent to a disapproval.
It was undoubtedly competent for the General Assembly to grant this franchise, and to guard against its improper exercise by giving the city supervisory powers. It was equally within its appropriate domain to grant an appeal to some suitable tribunal from any unreasonable conditions which the city might impose. I do not think that it can be said, as matter of law, that the Superior Court, or a judge thereof, is an unsuitable tribunal, or one upon which the Constitution forbids such a duty to be imposed. The function so conferred
I think, however, that the appeal to Judge Hall may fairly be regarded as a judicial proceeding, calling for the exercise of judicial power. He was bound to dispose of it in accordance with the fundamental rules of law. Hopson'S Appeal, 65 Conn. 140, 148. His decision, subject to that limitation, was “final and conclusive upon the parties.” Public Acts of 1895, p. 631. Here is a cause, brought before a judicial magistrate, to redress a wrong, and so obtaip the benefit of a public grant; known rules of procedure; a party plaintiff and a party defendant; provision for a final judgment determining the right in controversy'-; and for an appeal to this court for error in law. Central Railway and Electric Company's Appeal, 67 Conn. 197, 206. Such a proceeding, it seems to me, may fairly'- be termed judicial.
But if it be deemed to involve only an exercise of quasi-judicial or administrative power, for reasons already stated I think such a power can be lawfully conferred on a judge of the Superior Court. Controversies as to the manner in which the use of a franchise, granted for the public benefit, shall be guarded in the public interest, may ordinarily be settled either by legislative, judicial, or administrative proceedings, at the will of the legislature, as it may be expressed in the grant, or in the general laws passed to regulate its exercise.
The fact that the city of Norwalk took no action upon the plan submitted by the railway company, does not seem to me to vary the appellate character of this proceeding. Inaction, under such circumstances, was as prejudicial to the company as adverse action. It is always competent for a legislature
I do not, however, regard the duty of the judge of the Superior Court to take cognizance of this petition, as at all dependent on its being in the nature of an appeal. In my opinion, it would have been the same, had the statute authorized the submission of the plan of construction to him as an original proceeding. U. S. v. Ritchie, 17 How. 525. The Constitution required the establishment of a Superior Court, but its “powers and jurisdiction,” as well as those of all inferior courts, were left to “be defined by law.” Art. V, § 1. The statute, which governs this case, is such a law. It defines the powers and jurisdiction of the Superior Court and of its judges as to a particular class of controversies. A difference of opinion between a municipal corporation and a private corporation as to what is a reasonable use of a legislative franchise affecting the public highways, which difference must be settled before the franchise can be used at all, seems to me to present a case which it is eminently proper to place within the jurisdiction of a court. An analogous proceeding at common law was that by writ of certiorari, in the exercise by the Court of King’s Bench of a general superintending power over not only inferior courts, but any persons invested by the legislature with power to decide on the property or rights of the citizen. Le Roy v. Mayor, 20 Johns. 480, 488; Mendon v. County Commissioners, 2 Allen, 463, 465. Had the General Assembly authorized a railway company, whose plan of construction, though duly submitted to the city authorities, had neither been approved nor disapproved, to apply to the Superior Court for a mandamus to compel them to act, there nuld have been no objection to such a remedy. But if such a matter can be brought before the judiciary in that way, is it not a mere question of legislative policy whether an opportunity shall be granted to seek full relief in the same forum, by substituting for an authority that has failed to do its duty an authority not less fitted to decide impartially, and better fitted
A motion for a rehearing was filed by the Norwalk Street Railway Company in August, 1897, and argued at the succeeding October term of this court held in Bridgeport.
John W. Ailing and George D. Watrous, with whom were J. Belden Hurlbutt and Winthrop H. Perry, for the motion.
Goodwin Stoddard, with whom was Bdward M. Lockwood, in opposition to the motion.
The motion isjbaled. The appeal to Judge Hall was taken under the provision of the Act of 1895, authorizing an appeal whenever the municipal authorities shall fail to notify the railroad company of their decision as prescribed, and transferring in such event to the court, “ the same powers with reference to said plan and the acceptance or modification thereof, that said municipal authorities would have had under the provisions of said Act” of 1893. This appeal should have been dismissed, because the court had no jurisdiction to entertain such an application; and for this reason we reversed the judgment.
Counsel now claim that the appeal to Judge Hall was also an appeal under the preceding provision of the Act of 1895, authorizing an appeal from any “decision, denial, order or
The considerations now suggested in support of this claim, as well as those in further support of the appellant’s main contention, were carefully weighed before our decision was announced. We held that the appeal to Judge Hall was not taken from any decision, etc., under the first provision of the Act of 1895, but was taken solely under the later provision which we held to be invalid. The judgment of reversal simply directs the dismissal of the application to Judge Hall, for want of jurisdiction; it is not a bar to the new presentation of a plan to the city council and a proper appeal, if occasion shall arise, under the first provision of the Act of 1895.