Selleck v. Common Council of South Norwalk

| Conn. | Oct 15, 1873

Park, J.

The only question raised by the record is, whether the statute passed by the legislature in 1873 applies to this case. That act took effect after the election of the petitioner as a member of the common council of the city of South Norwalk, but it was in force when the common council acted in reference to the legality of the petitioner’s election, as set forth in the petition and return.

The petitioner concedes that the legality of his election could have been reviewed by the Superior Court, the tribunal authorized by law to determine the question at the time the election took place, but ho denies that a statute passed after-wards, changing the tribunal of review, can confer upon such tribunal jurisdiction of the matter, unless the act is held to be retro-active in its operation, and this he claims the language of the statute forbids to be done.

The legality of the petitioner’s election had never been determined when the now statute came into force, nor had any proceedings been instituted to determine the question. The claim of the petitioner therefore assumes that a statute must necessarily be retro-active in its effect if it provides a new tribunal to determine a case after a cause of action has arisen. When the county courts were abolished in 1855, and all cases then pending in those courts were transferred to the Superior Court, there were no doubt hundreds of cases where causes of action existed upon which suits had not then been brought. The Superior Court assumed jurisdiction over the cases then pending in the county courts, and also over proceedings thereafter brought, based upon such then existing causes of action. Can it be said that the new statute was retro-active in its operation, especially so far as it conferred jurisdiction over suits thereafter brought upon such causes of action ? A is indebted to B in the sum of one hundred dollars. Must the case be tried by a court that had jurisdiction of the matter when the indebtedness accrued ? Is there such a connection between the origin of the debt and the court to try a suit that should be brought to recover it, that they cannot be separated otherwise than by a retro-active statute ? What does this statute retro-act upon ? It does not affect the election of the petitioner, and attempt to change it from a legal to an illegal one. It does not affect any proceedings whatever then pending. There is nothing conceivable, past and finished, that the statute affects. It simply finds a case within its purview to be tried, and authorizes its trial.

* But the statute in question was clearly intended to apply to cases of this kind. It makes the common council of the city final judges of the election returns and qualifications of its members. By tlie use of tlie word “ final ” the legislature intended to divest the Superior Court of jurisdiction in such cases and make the common council the solo tribunal to determine the legality of the election of its members. Commonwealth v. McCloskey, 2 Rawle, 369" court="Pa." date_filed="1830-01-28" href="https://app.midpage.ai/document/commonwealth-v-mcloskey-6314423?utm_source=webapp" opinion_id="6314423">2 Rawle, 369; Ex-parte Strahl, 16 Iowa, 369" court="Iowa" date_filed="1864-06-13" href="https://app.midpage.ai/document/ex-parte-strahl-7092988?utm_source=webapp" opinion_id="7092988">16 Iowa, 369; State v. Funck, 17 id., 365; Macklot v. Davenport, id., 379; Commonwealth v. Baxter, 35 Penn. S. R., 263; Commonwealth v. Leech, 44 id., 332; Lamb v. Lynd, id., 336; Commonwealth v. Meeser, id., 341; Greer v. Shackelford, Const. R. 642; Wammacks v. Holloway, 2 Ala., 31" court="Ala." date_filed="1841-01-15" href="https://app.midpage.ai/document/wammack-v-holloway-6501387?utm_source=webapp" opinion_id="6501387">2 Ala., 31; Hummer v. Hummer, 3 Greene (Iowa), 42; State v. Marlow, 15 Ohio S. R., 114; People v. Wetherell, 14 Mich., 48" court="Mich." date_filed="1865-11-13" href="https://app.midpage.ai/document/people-ex-rel-moore-v-witherell-6633507?utm_source=webapp" opinion_id="6633507">14 Mich., 48; State v. Fitzgerald, 44 Misso., 425; Bateman v. McGowan, 1 Metc., (Ky), 533; O'Docherty v. Archer, 9 Tex., 295" court="Tex." date_filed="1852-07-01" href="https://app.midpage.ai/document/odocherty-v-archer-4887668?utm_source=webapp" opinion_id="4887668">9 Texas, 295.

But the petitioner claims that his rights had become permanently established when the new statute was passed, and that therefore it should be so construed that his rights would not be affected thereby. It is difficult to see how the petitioner’s right to the office of councilman had become permanently established. The legality of his election had never been determined by the Superior Court. Indeed no proceedings had been brought to ascertain the matter. Nothing had been done. If his election was illegal when it was made, it remained so till the common council took action in the matter. We think therefore that the common council had jurisdiction of the case, and that their action in the premises was in accordance with the statute.

We therefore advise the Superior Court that the return is sufficient, and that the proceeding be dismissed.

In this opinion the other judges concurred.