68 Conn. 131 | Conn. | 1896
Lead Opinion
The provision of suitable means of communication between the opposite banks of the Connecticut river has been, from early Colonial days, a frequent subject of legislation by the General Assembly. Numerous ferries have been set up, from time to time, at different points, by virtue of franchises conferred in some cases upon towns, and in others upon individuals; and several toll-bridges have been erected during the present century, under charters granted to private corporations.
One of these bridges took the place of an ancient ferry between the towns of Hartford and East Hartford, in which each town had a proprietary interest. The bridge company, by a voluntary settlement, paid to Hartford a satisfactory compensation for the revocation of its ferry franchise ; but declined to recognize any claim of East Hartford, the original grant to which, by its express terms, was only during the pleasure of the General Assembly, and had been repealed without qualification. Litigation resulted, and this court held that no rights of East Hartford had been violated; a decision afterwards affirmed, upon proceedings in error, by the Supreme Court of the United States. In the opinion there delivered, it was held that the State, on the one hand.
“ They are incorporated for public, and not private objects. They are allowed to hold privileges or propertjr only for public purposes. The members are not shareholders, nor joint partners in any corporate estate, which they can sell or devise to others, or which can be attached or levied on for their debts.
“ Hence, generally, the doings between them and the legislature are in the nature of legislation rather than compact, and subject to all the legislative conditions just named, and therefore to be considered as not violated by subsequent legislative changes.
“ It is hardly possible to conceive the grounds on which a different result could be vindicated, without destroying all legislative sovereignty, and checking most legislative improvements and amendments, as well as supervision over its ■subordinate public bodies.
“ Thus, to gó a little into details, one of the highest attributes and duties of a legislature is to regulate public matters with all public bodies, no less than the community, from time to time, in the manner which the public welfare may appear to demand.
“ It can neither devolve these duties permanently on other*141 public bodies, nor permanently suspend or abandon them itself, without being usually regarded as unfaithful, and, indeed, attempting what is wholly beyond its constitutional competency.
“ It is bound, also, to continue to regulate such public matters and bodies, as much as to organize them at first. Where not restrained by some constitutional provision, this power is inherent in its nature, design, and attitude; and the community possess as deep and permanent an interest in such power remaining in and being exercised by the legislature, when the public progress and welfare demand it, as individuals or corporations can, in any instance, possess in restraining it.” East Hartford v. Hartford Bridge Co., 10 How. 511, 533.
• In view of these principles of constitutional law, an Act was passed by the General Assembly in 1887 for the purpose of making this same bridge a free public highway and throwing the burden of its support on the towns which would be especially benefited by such a change. At that time there were three toll-bridges across the Connecticut river in Hartford county. By this Act, which was entitled “ An Act to establish Free Public Highways across the Connecticut River in Hartford County ” (Public Acts of 1887, Chap. 126, p. 746), the State’s Attorney was directed to bring a com-* plaint in the name of the State to the Superior Court for that county, against the corporations owning these bridges, for the purpose of making each of them a .free public highway. Notice of the pendency of the proceeding was to be given to all towns interested, and any town might appear and become a party. Commissioners were to be appointed by the court, who should “ lay out and establish highways across the Connecticut river where the toll bridges in said county now are, and across said bridges and across and along the causeways and approaches appurtenant to and connected therewith.”
The commissioners, after such notice as the court should prescribe as to those towns which they should deem interested, were to “ estimate and assess the damages caused by the lay-out and establishment of such free highways, and
The Act also contained the following provisions:—-
“ See. 5. Said towns so assessed shall, within three months from the rendition of said judgment, deposit with the treasurer of this State the sums so severally assessed against them,- and at the expiration of said three months the comptroller shall draw his order on the treasurer in favor of the several persons or corporations in whose favor damages have been assessed for the amount of damages so assessed respectively, and said treasurer shall hold the amount thereof for the benefit and subject to the order of the several parties in whose favor said orders were drawn, and shall notify said several parties that he so -holds said amounts, and thereupon said highways so laid out as aforesaid shall become and remain public highways. In case any town shall fail to pay the judgment rendered against'it as aforesaid, within the time aforesaid, said court shall order execution upon said' judgment to be issued against said town in favor of the State.”
Each town so assessed was given, by § 6, power to issue bonds to raise the money to pay its assessment.
“ Sec. 7. When said highways, so established as aforesaid; shall have become free public highways as aforesaid, the same shall thereafter be maintained by said towns so assessed in proportion to the assessment upon- said towns- as hereinbefore provided. The first selectmen of said several towns shall meet on the second Monday after said highways shall have become-free highways as aforesaid, at the office-of the select*143 men in Hartford, and annually thereafter and at such other times as they shall deem necessary, and said several first selectmen shall constitute a board for the care, maintenance, and control of said highways. Said board shall appoint a chairman, secretary, and treasurer; and said board shall apportion the expense of repairing and maintaining said highways upon the said several .towns in proportion to the assessment against said towns as aforesaid, and said chairman shall draw his order on the respective treasurers of said towns to the order of the treasurer of said board for the proportional amount payable by said towns as aforesaid for such repairs and maintenance. Any damages resulting from the defective condition of said highways or the bridges upon the same, shall be paid by said towns in proportion to the said assessment. For the purpose embraced in this section said board shall be a body politic and corporate by the name of The Board for the Care of Highways and Bridges Across the Connecticut River in Hartford County, and actions may be brought against said board by service upon its secretary, and any judgment recovered therein shall be paid by said towns in said proportions and in the same manner as herein provided for the pajmient of the expenses of repairs and maintenance as aforesaid. Said board shall annually report to said several towns the expenses incurred and paid by them during the preceding year.”
By a joint resolution, approved on the same day, it was provided that this Act should not affect the bridge between Windsor Locks and Warehouse Point, nor that between Suffield and Enfield.
Due proceedings were had under the Act, resulting in a final judgment in 1889, establishing a free public highway across the river between Hartford and East Hartford, including the bridge and causeway of the Hartford Bridge Company, and awarding it $210,000 damages. The court also “ found that the towns of Hartford, East Hartford, Glastonbury, South Windsor, and Manchester, will be specially benefited by the lay-out and establishment of such free highway, and estimated and assessed said damages upon said several
Pending the action, the General Assembly in 1889 appropriated $84,000 from the treasury of the State, for the purpose of paying forty per cent of these damages. 10 Special Laws, p. 1321. In view of this, the judgment of the Superior Court concluded with an order that “ the town of Glastonbury shall within three months from the date of rendition of this judgment, deposit with the treasurer of this State the sum of fifteen thousand ($15,000) dollars, the same being 60 per cent, of the sum so assessed against it,” and a like provision with respect to the assessment against each of the other four towns, and a further order that “at the expiration of said three months from the date of the rendition of this judgment the comptroller of the State shall draw his order on the treasurer in favor of the Hartford Bridge Company for the sum of $210,000, the same being the amount of the damages that have been so assessed in its favor, and that the treasurer shall hold the amount thereof, viz.: said two hundred and ten thousand ($210,000)' dollars, for the benefit and subject to the order of said Hartford Bridge Company, and "shall forthwith notify said Hartford Bridge Company that he so holds said amount, and thereupon as soon as the treasurer shall give said notice said highway so laid out as aforesaid shall become and remain a public highway.
“The treasurer of theState shall at the same time give notice • to the first selectman of each of said towns, viz.; Hartford, East Hartford, Glastonbury, South Windsor and Manchester, that said highway has become a free public highway to be thereafter maintained.by said towns.”
After this judgment had been fully executed, the General Assembly, in 1893, passed an Act (Public Acts of 1893,
Commissioners were duly appointed under this Act, who soon afterwards, the bridge having become unsafe, executed' a contract in behalf of the State with the Berlin Iron Bridge Company for the erection of a new one at a cost of over $300,000. After the company had begun the work of construction, the old bridge was accidentally destroyed by fire, and the commissioners thereupon ordered, under one of the provisions of the contract, the erection of a temporary bridge by the same companjr.
While it was fulfilling this order, an Act was passed, which was approved and took effect May 24th, 1895 (Public Acts of 1895, Chapter 168, p. 530), repealing the Act of 1893, and requiring the towns of Hartford, East Hartford, Glastonbury, South Windsor and Manchester thereafter to maintain the highway across the Connecticut river where the old bridge formerly was, with the proper approaches, and to erect a new bridge whenever necessary, and maintain the same, contributing to any expenses to which they might be thus subjected, “ in proportion to the assessment made upon said towns by the Superior Court in the proceedings in which said highway was laid out and established; that is to say: Hartford, ninety-five two-hundred-and-tenths; East Hartford, sixty-six two-hundred-and-tenths ; Glastonbury, twenty-five two-hundred- and-tenths; South Windsor, twelve two-hundred-and-tenths; Manchester, twelve two-hundred-and-tenths.” Half the taxes received by the State, during the next five years, from any street railway companies using the bridge, was to be paid over to the towns in proportion to their assessments, and ten per cent of such receipts during each succeed
On June 28th, 1895 (Special Acts of 1895, Chap. 84S> p. 485), a Private Act was passed, entitled an Act “ Creating the Connecticut River Bridge and Highway District.” By this the towns of Hartford, East Hartford, Glastonbury, Manchester, and South Windsor were constituted a corporation under the name of the Connecticut River Bridge and Highway District, “ for the construction, reconstruction, care, and maintenance of a free public highway across the Connecticut river at Hartford and the causeway and approaches appertaining thereto, as described in a decree of the Superior Court of Hartford county, passed on the tenth day of June, 1889, in which decree said highway was laid out and established.” Four citizens of Hartford and one from each of the other towns were appointed “ commissioners for said district,
The judgment, brought up for review by this appeal, directed the issue of a writ of peremptory mandamus, to enforce the payment by the treasurer of the town of Glastonbury of an order drawn upon him by vote of the Commissioners for the Connecticut River Bridge and Highway District for 3/100 of the sum of $500, required to meet expenses incurred by the board for the ordinary support and maintenance of the highway under their charge. In behalf of the town it is contended that it cannot thus be compelled to contribute, at the dictation of officials not of its own choosing, to the cost of maintaining a highway which is wholly outside of its territorial bounds.
It has undoubtedly been the general policy of the State to leave the expense of public improvements for highway purposes to the determination of the municipal corporations within the limits of which the highways may be situated, and to charge them only with such obligations as may be incurred in their behalf by officers of their own selection. But when the State at large or the general public have an interest in the construction or maintenance of such works, there is nothing in our Constitution, or in the principles of natural justice upon which it rests, to prevent the General Assembly from assuming the active direction of affairs by such agents as it may see fit to appoint, and apportioning whatever expenses may be incurred among such municipalities as may be found to be especially benefited,- without first stopping to ask their consent. Norwich v. County Commissioners, 13 Pick. 60; Rochester v. Roberts, 29 N. H. 360; Philadelphia v. Field, 55 Pa. St. 320; Simon v. Northup, 27 Or. 487, 40 Pac. Rep. 560. As against legislation of this character, American courts generally hold that no plea can
The Constitution of Connecticut was ordained, as its preamble declares, by the people of Connecticut. It contemplates the existence of towns and counties; and without these the scheme of government, which it established, could not exist. It secured to these territorial subdivisions of the State certain political privileges in perpetuity, and among others the election by each county of its own sheriff, and by each town of its own representatives in the General Assembly, and its own selectmen and such officers of local police as the laws might prescribe. It secured them, because it granted them; not because they previously existed. Towns have no inherent rights. They have always been the mere creatures of the Colony or the State, with such functions and such only as were conceded or recognized by law. Webster v. Harwinton, 32 Conn. 131. The State possesses all the powers of sovereignty, except so far as limited by the Constitution of the United States. Its executive and judicial powers are each distributed among different magistrates, elected some for counties, and some for the State at large; but its whole legislative power is vested in the General Assembly. Our Constitution imposes a few, and only a few, restrictions upon its exercise, and except for these the General Assembly, in all matters pertaining to the domain of legislation, is as free and untrammeled as the people would themselves have been, had they retained the law-making power in their own hands, or as they are in adopting such constitutional amendments from time to time as they think fit. Pratt v. Allen, 13 Conn. 119, 125 ; Booth v. Town of Woodbury, 32 id. 118, 126. It has not infrequently, from early Colonial days, made special provision for particular highways or bridges, and in several instances by the appointment of agencies of its own to construct or alter them at the expense of those upon whom it thought fit to cast the burden. 1 Col. Ree. 417; 5 id. 80; 13 id. 605, 630; 1 Private Laws, 282, 285.
That so many laws of this general description have been enacted by the General Assembly, both before and since the adoption of our Constitution, is, of itself, entitled to no small weight in determining whether they fall within the legitimate bounds of what that instrument describes as “legislative power.” Maynard v. Hill, 125 U. S. 190, 204; Wheeler's Appeal, 45 Conn. 306.
One of those to which reference has been made (1 Priv. Laws, p. 285), required the town of Granby to build and maintain a bridge across the Farmington river, half of which was in the town of Windsor, and was adjudged to be valid by this court, notwithstanding then as now the General Statutes provided that bridges over rivers dividing towns should be built and maintained at their joint cost. Granby v. Thurston, 23 Conn. 416. There is no principle of free government or rule of natural justice which demands that the support of highways and bridges shall be imposed only on those territorial subdivisions of the State in which they are situated. If it be required of them, it is only by virtue of a statute law, which the legislature can vary or repeal at pleasure. Chidsey v. Canton, 17 Conn. 475, 478. The burden is one that the legislature can put on such public agencies as it may deem equitable, and transfer from one to another, from time to time, as it may judge best for the public interest. Dow v. Wakefield, 103 Mass. 267; Agawam v. Hampden, 130 Mass. 528; County of Mobile v. Kimball, 102 U. S. 691, 703; Washen v. Bullitt County, 110 U. S. 558.
The defendant urges that taxation and representation are indissolubly connected by the underlying principles of free government, and that this (the commission which directs the affairs of the Bridge District and makes requisitions on the towns for such funds as it deems necessary, not having been
Taxes can, indeed, under our system of government, only be imposed by the free consent of those who pay them, or their representatives; and for purposes which they approve. But the inhabitants of these towns were represented in the General Assembly, by which the laws now brought in question were enacted. The legislative power, after defining the general purposes of taxation, to confer upon local public corporations the right to determine the amount of the levy within the territory under their jurisdiction, is unquestionable ; and in its exercise it is immaterial whether the corporations, to which that function is entrusted, or between which it is shared, be called counties or towns, school districts or bridge districts. When a levy is voted, the action is corporate action, deriving its obligatory force wholly from the authority of the State. Towns cannot tax their inhabitants for any purpose except by virtue of statute law. That law for many years required them annually to tax for moneys to be paid over to the State treasurer for State expenditures. It now requires them to tax, as occasion may require, for moneys to be paid over to the county treasurer for county expenditures. It can equally require any town or towns to tax for moneys to be paid over to the treasurer of a bridge or highway district, in which they are included, for district expenditures. Kingman et al., Petitioners, 163 Mass., 566, 27 Northeastern Rep. 778.
It has been suggested that in Colonial times it was the right of the inhabitants of every town, themselves, to order the municipal duties assigned to them and choose the officers by whom only it could be placed under a pecuniary obligation, and that this is one of those rights and privileges “ derived from our ancestors,” to “ define, secure and perpetuate ” which our Constitution was adopted, and to which its preamble refers. If it can be said that such a right ever existed, it was not one of the nature of those which were described by the framers of the Constitution, They were speaking of
The defendant further insists that the act of June 28th is void, because in § 4 it requires payments from the town treasuries without providing the necessary means; the authority given to raise the necessary funds in the annual tax-levy being of no avail because the Bridge District is not required to submit any estimate of the amount needed for the ensuing year, before the time for laying the tax. There is no substance to this objection. So far as concerns the principal and interest of any bonds that may be issued, each town is expressly directed to pay to the district, annually, twenty-five cents for each thousand dollars of its grand list, until enough has been thus received to satisfy its proportionate share. As to the ordinary expenses of maintenance, the commission is to draw orders on each town from time to time for such sums as it may determine as the proportion of such town under the provisions of the Act. The rule for ascertaining this proportion is that previously laid down in the
No valid exception can be taken to this rule of apportionment, according to which the expenses of the Bridge District are to be distributed among the several towns.
The Acts of 1895, under which the present action has arisen, both refer to and in a sense rest upon the Act of 1887. That was designed to secure the perpetual maintenance of the Hartford bridge as a free highway, at the expense of those towns to which it might be found to be of especial benefit. ¿ The duty of ascertaining which towns would be thus benefited was intrusted to the Superior Court. It might have been undertaken by the legislature itself, but it was entirely proper to make it the subject of proceedings of a judicial character, to be instituted by the State. Salem Turnpike & Chelsea Bridge Corporation v. County of Essex, 100 Mass. 282. This duty was fulfilled; and since the date of the final decree in that cause, there has been and there could be no material change in any of the conditions by which it was determined. Whatever towns were most benefited in 1889 by the perpetual maintenance of a free bridge, must be most benefited by it in 1895. This was purely a question of proximity. Hartford is the natural market of all the neighboring towns lying within easy driving distance. -From several of these she is separated by a navigable river, which is outside of her boundaries as well as of theirs. Ferries had been tried as a means of communication, and found inadequate. A toll-bridge had then been established, and with the same result. The next step naturally was to provide for a free bridge. Four towns east of the river have been judicially found to derive a special benefit from this, and while the proportionate benefits accruing to each, as well as those to Hartford, may vary from time to time, with changes in population and
Complaint is made because, while by the decree of the Superior Court, Glastonbury was charged with 25/210 of the cost of erecting and maintaining a bridge at this point, and this proportion was re-affirmed by the General Assembly, in the Act of May 24th, 1895, by that of June-28th, 1895, it was cut down to 8/100, and other changes made, with the result of reducing the assessment of every town except Hartford, the burden thrown upon which was largely increased.
There is no reason why the relative amount of benefits, which each of the five towns, as compared with the rest, derives from the bridge, may not vary from one period of time to another; and any such variation might present an equitable ground for making a corresponding change in its proportionate assessment for the expenses of construction or maintenance. (_That what was the proper share of each was determined in 1889 by a judicial proceeding, did not preclude a re-adjustment for due cause, in 1895, by a legislative proceeding ; -nor did the Act of May 24th, 1895, put it out of the power of the General Assembly to reconsider its action, as was, in effect, done by the Act of June 28th/ Scituate v. Weymouth, 108 Mass. 128. We are bound to presume that there was due cause for making the apportionment finally determined on, for it is certain that there might have been. A comparison of the censuses of the United States for 1880 and 1890, between which dates the proceedings under the Act of 1887 were brought to a conclusion, shows that while, during the intervening decade, the population of Hartford, East Hartford, and Manchester had been largely increased, that of Glastonbury and South Windsor had suffered a substantial loss. The organization of modern society is such as to foster the growth of cities and their suburbs, at the ex
Nor is it of any importance that in 1893 the State had taken the maintenance of the bridge upon itself. This was merely a gratuitous act, with no element of a contract, and gave rise to no vested rights, except such as might accrue from obligations on the part of the State subsequently assumed by virtue of its provisions.
It is contended that such an obligation was contracted in favor of the Berlin Iron Bridge Company, and was impaired by the legislation of 1895. If so, this legislation would be so far forth invalid as against that company, under Art. I, § 10 of the Constitution of the United States. The result would be that the contract made between it and the bridge commissioners, acting under the Act of 1893, would remain in force; but not that the State could not compel the towns especially benefited by its execution to pay for the benefits received. In fact, however, the pleadings show that the Bridge Company, availing itself of the remedy tendered by the Act of May 24th, 1895, presented its claim for breach of contract to the commission appointed to examine it, and pending this action has accepted their award, and discharged the State from all demands. This, at all events, left the towns or their representatives in no position to raise this objection on constitutional grounds. In mandamus proceedings matters occurring after the suit is brought can be properly considered in determining whether the writ shall be made peremptory.
We have spoken of the Bridge District as a municipal corporation, although it may not answer the common law definition of that term, since not composed of the inhabitants of anj' territory as such. In modern times corporations, both public and private, have often been constituted by a union of other corporations. Such was the United States of America after the Declaration of Independence, and until the adoption of their present Constitution. Such are the various counties of this State, once quasi corporations and now full corporations, the constituents of which have always been the several towns within their boundaries. The power of
The defendant having refused to pay an order lawfully drawn upon him in behalf of the Bridge District, the writ was properly issued against him. There was no necessity for making the several towns or the Bridge District parties defendant. The Bridge District was, in effect, the relator; no town other than Glastonbury had any legal interest in the controversjr; and Glastonbury itself had none in this suit, by which it was charged with no wrong, and in which the only remedy sought was one to compel the performance of a statutory duty incumbent on its treasurer, as such. The writ of mandamus must run singly to the party who is bound to do the particular act commanded. Farrell v. King, 41 Conn. 448, 453.
While not necessary parties, the Superior Court might and, no doubt, would have summoned in any or all of the five towns, or the Bridge District, or admitted any of them as intervenors, had application to that effect been made; for each had a vital interest in the questions of law on which the case must turn. General Statutes, §§ 884, 887, 890. No order of this nature, however, having been sought from any quarter, their absence can furnish no ground of appeal.
There is no error in the judgment appealed from.
In this opinion Torrance and Fenn, Js., concurred.
Dissenting Opinion
(dissenting). (\ deem it clear and certain-that the duty which the Act referred to authorized the relators to perform, was a town duty. Nowhere in the Act are the relators made State officers and charged with State duties; but on the contrary they are spoken of as town officers set to transact town affairs j The maintenance of the
The relators, although appointed to transact town affairs, are—six of them—not inhabitants of Glastonbury. They were not elected by the inhabitants of that town, nor has that town any control over their conduct. And from so much of the opinion as holds that the order of the relators is obligatory on that town through the town treasurer, I wholly dissent.
(it would be admitted without dispute that it would be incompetent for the legislature to engage in the performance of the affairs of a private corporation, by officers of its own appointment. The legislature chartered the New York, New Haven & Hartford Railroad Company, and may alter or repeal that charter at pleasure; but the legislature cannot appoint a superintendent or a general manager of the affairs of that company, without its consent, for whose acts or negligence the corporation should be liable. Such an appointment, if by any possibility the legislature should ever make one, would probably be held void as not being a legislative act. But if held valid, it could only be on the ground that as the legis-' lature might put an entire end to the existence of that corporation, it could do the same thing by piecemeal or by indirection.
The difficulty with the appointment of these commissioners is not with the power of the legislature to establish agencies for the execution of governmental fun ctions, nor with its power
It will be a surprising doctrine to the people of this State, even if only suggested, that the Constitution by the grant of legislative power has conferred on the legislature the authority to take from them the management of their local concerns and the choice of their own local officers. It would he hardly more surprising to them to be told, that by adopting the Constitution they had granted to their own representatives the legal authority to take away their liberties altogether.
The building and repair of highways has always been one of the principal duties of a town. In Ludlow’s Code of 1650, it was ordered that each town should every year choose one of its inhabitants as surveyor to take care of the highways, with power to call out the persons fit for labor, for as many days as might be necessary to keep the same in repair. Subsequently the work was provided .for by town taxation, and the oversight committed to the selectmen, who were specially charged with mending and repairing the bridges and roads used by the stage that carried the mails. From 1643 to the present time, the duty and the corresponding powers in reference to the support of highways has been recognized as essentially a corporate duty belonging to the towns, to be performed by town officers; New Haven v. Sargent, 38 Conn. 53; Suffield v. Hathaway, 44 id. 521; and it cannot now be maintained that such burden can be imposed on towns, while all the powers necessary for their performance are committed to persons not officers or agents of the town, without holding that the inhabitants of the several towns may be held responsible to the whole extent of their property, for the per-J
The legislature has appointed the relators, and has authorized them to perform a town duty respecting a highway. If the legislature may do this, it ma}’- appoint the same or other commissioners to perform any or all other town duties. There is no argument which will sustain the former which will not sustain the latter. And if this is the law—that the legislature in this State may take to itself the entire and exclusive government of a town through officers of its own appointment—then this judgment is correct; and if the legislature may not do so, then this judgment is erroneous. Stated broadly and nakedly, the question in this case can be nothing short of this: Is or is not town government in this State a mere privilege conceded bjr the legislature in its discretion, and one which may be withdrawn at any time at its pleasure ? While the majority of the court do not assert so extreme a view, yet the argument of the majority opinion involves the theory of the existence in the legislature of this plenary and sovereign right; and unless such right exists that argument fails.)
It is true that in some decisions the courts of this State have spoken of towns as possessing no inherent, original or reserved powers; but only such powers as have been delegated to them, and which may be regulated and controlled by the legislature. It is from these expressions that the claim is made that towns are nothing but mere agencies which the State employs for the convenience of government, clothing them from time to time with a portion of its sovereignty, but recalling the whole or any part thereof whenever the necessity or the usefulness of the delegation is no longer apparent. In those cases where these expressions have been used, they may not have been inappropriate. In none of them was the actual exercise by the legislature of any such power the subject of the decision. Such expressions, however, are very seldom true in anything more than a general sense. They never are and, in this State, never can be lit
The people of this State, when they formed the present Constitution, found the whole of its territory occupied by those municipal corporations called towns, each embracing all the inhabitants of a certain portion of the territory. These corporations were governed by their own inhabitants in town meetings, and their affairs were managed by officers chosen by themselves, and who were always inhabitants of the town. And they provided in that instrument that the rights and duties of all corporations should remain as if the Constitution had not been adopted, except so far as therein restricted or limited. Art. X. § 3. They also provided, Art. VI., that electors should only be admitted from the inhabitants of a town, and by the selectmen and town clerk ; and by Arts. III. and IV., that meetings by the electors for the choice of State officers should be held in the several towns and carried on by town officers; and by Art. III. that the House of Representatives should consist of representatives from each town, being electors and residents in that town ; that town representation should be substantially equal, and that no town should be abolished or deprived of its representation without its own consent; aud by Art. X. § 2, that each town should annually elect selectmen, and such other officers of local police, as the laws may prescribe.
(The relation of the towns in this State to the State government, is different from that in other States. Prior to the adoption of the Constitution, the State government consisted mainly of an assembly of delegates from the towns; and those towns had been uniformly treated as entitled to local self-government. While it could not be said that an Act of that assembly vesting the functions of a town meeting, or the duties of selectmen, in a commission appointed by the assembly, would be unconstitutional—strictly there was in
This right of the inhabitants of a town to themselves order the municipal duties assigned to the town, was plainly one of those “ rights and privileges derived from their ancestors,” which the Constitution was adopted “ in order more effectually to define, secure, and perpetuate.” By the several articles of the Constitution above mentioned, that instrument intended to make sufficient provisions to that end. It did guarantee the perpetual existence of the several towns, with selectmen to manage their local affairs and a town clerk to record their doings at town meetings; although it left the variety and duties of the officers of the local police subject 0 to legislative change.
In studying these parts of the Constitution, we should always keep in mind that the terms used had a settled meaning before it was adopted. So far as it relates to the form of administration the Constitution is in the main no more than a recognition and re-enactment of an accepted system. The rights preserved are ancient rights, and the municipal bodies recognized in it and required to be perpetuated, were already existing with known elements and functions. And when the Constitution guarantees the perpetual continuance of towns, it means towns with the same essential characteristics which towns at that time exercised; for if these essential characteristics do not remain, the town as known to the Constitution does not remain. It is the town as it then actually existed, with which the Constitution dealsj
Let us, then, ascertain what a town was as then existing. In that way only can we give to these provisions of the Constitution respecting towns, their full and true effect. The form of words by which a town corporation was created, sufficiently appears in a single instance. In the year 1779 Southington was incorporated; and the record, abbreviated, is that “upon the memorial of the inhabitants of the society of Southington, by their agents shewing that .... and pray
These statutes and rules respecting towns were a necessary result from the origin, formation and history of the peculiar form of government in this State. In stating this history, in order to have it as connected as possible, some slight repetition will be made.
^In 1633-4 a strong dissent developed in some prevailing notions of government in the infant colony of Massachusetts Bay. The opposition was strongest in the towns of Dorchester, Newtown, and Watertown. In 1631Watertown had protestéd against paying a tax assessed by the board of assistants, on the ground that they could not be taxed save
The “ Fundamental Orders ” or Constitution of 1639, was a combination and confederation entered into by the inhabitants and residents of Windsor, Hartford, and Wethersfield, “ to associate and conjoin ourselves to be as one public state or commonwealth,” and to be “guided and governed in our civil affairs,” according to such laws as shall be made in the manner provided. The orders provided that each year there should be held two General Courts, composed of deputies from each town chosen by “ all that are admitted inhabitants in the towns.” To said General Courts was committed the supreme power of the commonwealth, i. e. they only shall have power: 1. to make and repeal laws; 2. to grant levies for the commonwealth; 3. to admit freemen (only those already admitted inhabitants by the towns); 4. to dispose of lands undisposed of (not belonging to some particular town); 5. to discipline either towns or magistrates or any
This power, exclusive and permissive, given to the General Court, developed to the unlimited extent which afterwards characterized it, not so much from this (the 10th order), as from the 8th order which provided that Windsor, Hartford and Wethersfield, should each have power to send four of their freemen as their deputies to every General Court, “ which deputies should have the power of the whole town to give their votes and allowance to all such laws and orders as may be for the public good, and unto which the said towns are to be bound.” The power which any one of said General Courts might exercise, was unlimited; but the power was that of the several towns exercised by its deputies for the purpose of binding the towns by all laws and orders made for the public good. For this purpose the inhabitants of the towns, as self-governing bodies, did “ associate and conjoin themselves to be as one public state or commonwealth,” and did “for ourselves and our successors (i. e. inhabitants of each town) and such as shall be adjoined to us at any time hereafter (i. e. towns hereafter admitted) enter into combination and confederation together,” to be governed by such laws as are made in accordance with the fundamental orders. And as a further means by which each town might protect itself against unequal treatment by the confederacy, the final order prohibits the levy of any tax on the towns, unless the amount of the whole tax to be paid by each town is apportioned by a committee consisting of an equal number out of each town. Five years later Farmington was admitted, and the order provided: “ They also (the inhabitants) are to have the like liberties as the other towns upon the river, for making orders among themselves.” 1 Col. Rec. 134. About the same time Southampton on Long Island was admitted. Owing to its separation by the Sound from the jurisdiction of Connecticut, and the greater difficulties of participating in the doings of the General Court, as well as the doubt whether its inhabitants were included among those subject to the power of the original towns, a formal combination was
The fundamental orders consummated the union of independent and self-governing bodies for the purposes of their own better government and of extending their jurisdiction. The combination provided for an exercise of power limited only by the fact that the governing body could last but six months, and must consist of deputies from each town clothed with the whole power of the town; but by the very terms of the combination each town must continue a self-governing body; and from that time on the power of local self-government was recognized as necessarily involved in the existence—as well of the original towns who had associated and conjoined themselves to be as one state, as of those described as such towns “ as shall be adjoined to us at any time hereafter.” The fundamental orders were adopted January 14th, 1638-9. The first General Court was held in May, 1639; the second in September. There was an adjourned meeting of this court held in October; and in this the existing self-governing power of the towns was recognized. “The towns of Hartford, Windsor and Wethersfield, or any other of the towns within this jurisdiction, shall each of them have power to dispose of their own lands undisposed of, .... as also to choose their own officers, and make such orders as may be for the well ordering of their own towns, being not repugnant to any law here established.” 1 Col. Rec. 36. That this declaration was not regarded as a law necessary to give towns power not before possessed, is certain; because if it were so, such law would have been passed at the first court held in the preceding May, which
In 1818 the “ town ” was a territorial and municipal corporation, exercising the rights of local self-government through a town meeting and officers of its own choosing. It had existed with these rights from a time prior to the combination of the first towns under a joint jurisdiction. It had been continuously the main instrument by which all the operations of government were set in motion and carried on; and when the provisions of the Constitution speak of “ towns,” they speak of that kind of a municipal corporation whose character, rights and privileges, had been thus defined and settled for nearly two centuries.
After a struggle of more than thirty years, the General Assembly yielded to the general demand that the people have an opportunity to frame a constitution for their own government; that is, embody in one fundamental plan “ their supreme original will, in respect to the organization and perpetuation of a State government; the division and distribu
Upon the ratification by a majority of the people of the State, of the Constitution formed by the delegates from each town appointed for that purpose in town meetings, the former government by General Assembly was finally and forever dissolved. The people in the exercise of their sovereignty, established a new government in their separate and independent departments, whose powers were to be exercised and exercised only, in accordance with their “supreme original will embodied in the constitution.” As declared in its preamble, the main object in establishing this Constitution by the people, was “ in order more effectually to define, secure, and perpetuate the liberties, rights and privileges which they have derived from their ancestors.” This purpose was accomplished, first by the declaration of certain principles of free government, which were made a fundamental condition on which all powers to each department of government were granted; and second, by incorporating into the framework of the government established, such provisions as were deemed apt and necessary to preserve the most essential of their ancient privileges. Among these the one cherished above all others was the right and privilege of local self-government as represented in the towns, the town meeting, and the town officers. The town was the germ from which all government in Connecticut has developed; and under the Constitution, as this court has recently said, “ the annual town election is the single entrance to our whole system of State government.” O'Flaherty v. Bridgeport, 64 Conn. 165. Through all its history it had played the, most conspicuous part; with all the arbitrary power from time to time exercised by the General Court, the ordering of town affairs through its own officers had never been disturbed^ The suppression of the town meeting was associated with tyranny under the usurpation of Andros, and its maintenance was by common consent deemed both the source and protection of that sturdy independence and respect for law which had ever characterized our people. It was to be expected that when the delegates
When Art. VIII. provides that electors should only be admitted from the inhabitants of a town and by the selectmen and town clerk of the several towns, the perpetual existence of the several towns with an executive board to manage their affairs and a town clerk to record the doings at town meetings, is guaranteed. The same is true when Art. III. prohibits any meeting of the electors for the choice of State officers, except in the towns and when carried on only by town officers; and the same article, in providing that the House of Representatives should consist of representatives from each town, being electors residing in that town, and that town representation shall be substantially equal, and that no town should be abolished or deprived of its representation without its consent,—not only established a legislative department where the people, as corporators of town corporations are represented in the lower branch, and as individuals in the upper branch, but guaranteed the right and privilege in the inhabitants of each town to remain so long as they will a town corporation.
The legislature may regulate the conduct of the town corporation, may determine the local duties to be assigned to them—and in that sense the towns derive their powers from the legislature,—but the possession of some local duties and powers, the administration of such duties by themselves or their own officers, is inherent in the towns which the Constitution makes the basis of the new government, and the legislature has no power to destroy this town. The Constitution assumes the existence of towns as local municipalities, and contemplates that they shall continue as they have hitherto been. It does not expressly provide that every portion of the State shall have a town organization. It names certain officers who are to be chosen by the inhabitants of the towns, and confers on the inhabitants the right to choose these officers;
Article X., in providing that each town shall annually elect selectmen and such officers of local police as the laws may prescribe, guarantees the management of town affairs by town officers of their own choice. By directing the selectmen, the more modern name for the ancient townsmen,—to whom had been committed the important affairs of the town since the first settlement of the river towns,—to be elected by each town annually, the direction that all officers and agents of the town shall derive their appointment from the town, is affirmed by an implication so absolute as not to be escaped. Otherwise every officer and agent of the town, except selectmen and the local police prescribed by law, may be appointed by the legislature. The town clerk is certainly not a selectman ; if he is an officer of local police he is not such an one “ as the laws may prescribe; ” his title comes directly from
This right of local self-government is assured by the provisions of Arts. III. VI. and X. of the Constitution. It enters into the whole frame-work of the government; because of its existence, the continuance of the body of electors, the election of State officers, the constitution of the House of Representatives, were made dependent on the towns and subject to the specific provisions mentioned. A guaranty so bulwarked should be more potent than any naked restriction. When the Bill of Rights forbids the taking of private property for public use without compensation, it forbids the taking of such property for any but a public use ; and the guaranty implied is not less sacred than the guaranty expressed.
When, therefore, the legislature having included within the municipal duties of Glastonbury and the four other towns named, the maintenance of the highway described, it could not appoint the agents who on behalf of the town were to exercise those duties and powers. “ The theory of the Constitution is, that the several .... towns .... are, of right, entitled to choose whom they will have to rule over them ;
This opinion has been drawn out further than was intended. The question of local self-government, as an ingredient essential to constitutional administration, has been set forth so clearly in the language of Judge Cooley, in People v. Hurlbut, 24 Mich. 44, 105, already cited—a case in which the legislature had undertaken to appoint commissioners to govern the city of Detroit—that I quote the passage in full. After reviewing the history of local and municipal government in various States, he said:—
*174 “In view of these historical facts, and of these general principles, the question recurs whether our State Constitution can be so construed as to confer upon the legislature the power to appoint for the municipalities, the officers who are to manage the property, interests, and rights in which their own people alone are concerned. If it can be, it involves these consequences: As there is n'o provision requiring the legislative interference to be upon any general system, it can and may be partial and purely arbitrary. As there is nothing requiring the persons appointed to be citizens of the locality, they can and may be sent in from abroad, and it is not a remote possibility that self-government of towns may make way for a government by such influences as 'can force themselves upon the legislative notice. ... As the municipal corporation will have no control, except such as the State may voluntarily give it, as regards the taxes to be levied, the buildings to be constructed, the pavements to be laid, the conveniences to be supplied, it is inevitable that parties, from mere personal considerations, shall seek the offices, and endeavor to secure from the appointing body, whose members in general are not to feel the burden, a compensation such as would not be awarded by the people, who must bear it, though the chief tie binding them to the interests of the people governed might be the salaries paid on the one side and drawn on the other. As the legislature could not be compelled to regard the local political sentiments in their choice, and would, in fact, be most likely to interfere when that sentiment was adverse to their own, the government of cities might be taken to itself by the party for the time being in power, and municipal governments might easily and naturally become the spoils of party, as State and National offices unfortunately are now. All these things are not only possible, but entirely within the range of probability, if the positions assumed on behalf of the State are tenable. It may be said that these would be mere abuses of power, such as may creep in under any system of constitutional freedom; but what is constitutional freedom ? Has the administration of equal laws by magistrates*175 freely chosen no necessary place in it? Constitutional freedom certainly does not consist in exemption from governmental interference in the citizen’s private affairs; in his being unmolested in his family, suffered to buy, sell and enjoy property, and generally to seek happiness in his own way. All this might be permitted by the most arbitrary ruler, even though he allowed his subjects no degree of political liberty. The government of an oligarchy may be as just, as regardful of private rights, and as little burdensome as any other; but if it were sought to establish such a government over our cities by law, it would hardly do to call upon a protesting people to show where in the constitution the power to establish was prohibited; it would be necessary, on the other hand, to point out to them where and by what unguarded words the power had been conferred. Some things are too plain to be written. If this charter of State government which we call a constitution, were all there was of constitutional command; if the usages, the customs, the maxims, that have sprung from the habits of life, modes of thought, methods of trying facts by the neighborhood, and mutual responsibility in neighborhood interests, the precepts which have come from the revolutions which overturned, tyrannies, the sentiments of manly independence and self-control which impelled our ancestors to summon the local community to redress local evils, instead of relying upon king or legislature ata distance to do so,—if a recognition of all these were to be stricken from the body of our constitutional law, a lifeless skeleton might remain, but the living spirit, that which gives it force and attraction, which makes it valuable and draws to it the affections of the people, that which distinguishes it from the numberless constitutions, so called, which in Europe have been set up and thrown down within the last hundred years, many of which, in their expressions, have seemed equally fair and to possess equal promise with ours, and have only been wanting in the support and vitality which these alone can give,—this living and breathing spirit, which supplies the interpretation of the words of the written charter, would be utterly lost and gone.
*176 “ Mb,. Justice Story has well shown that constitutional freedom means something more than liberty permitted; it consists in the civil and political rights which are absolutely guaran ied, assured and guarded; in one’s liberties as a man and a citizen,—bis right to vote, his right to hold office, his right to worship God according to the dictates of his own conscience, his equality with all others who are his fellow-citizens ; all these guarded and protected, and not held at the mercy and discretion of any one man or of any popular majority.—Story, Miscellaneous Writings, 620. If these are not now the absolute right of the people of this State, they may be allowed more liberty of action and more privileges, but they are little nearer to constitutional freedom than Europe- was when an imperial city sent out consuls to govern it. I The men who framed our institutions have not so understood the facts. With them it has been an axiom, that our system was one of checks and balances; that each department of government was a check upon the others, and each grade of government upon the rest; and they have never questioned or doubted that the corporators in each municipality were exercising their franchises under the protection of certain fundamental principles which no power in the State could override or disregard. The State may mould local institutions according to its views of policy or expediency ; but local government is matter of absolute right; and the State cannot take it away. It would be the boldest mockery to speak of a city as possessing municipal liberty where the State not only shaped its government, but at discretion sent its own agents to administer it; or to call that system one of constitutional freedom under which it should be equally admissible to allow the ople full control of their local affairs, or no control at all
ín this State we are not obliged to invoke the underlying principle of American constitutional law, in order to protect the inhabitants of our towns in their right to local self-government ; the express provisions and necessary implications of our own Constitution plainly guarantee that right. Therefore the Private Act by which the legislature under
I think there is error in the judgment of the Superior Court.
Dissenting Opinion
(dissenting). I dissent from the decision of a majority of my colleagues, and cannot but believe that a different conclusion would have been reached, had it seemed to them as clear as it seems to me, that the legislation in question necessarily involves the appointment of the relators by the legislature, not as State officers but as town officers, not to perform duties directly in behalf of the State, but duties by the very terms of the statute assigned to the towns as the local municipal duties of a town corporation.
I dissent from the opinion as announced by Judge Baldwin, and concur in the opinion of Chief Justice Andrews.