| Conn. | Mar 30, 1899
The application in this case is brought in the name of the State’s Attorney alone. It would have been in better form had the Telephone Company been named as the relator. The injury complained of was one which affected that company only ; it did not affect many persons tn common, nor the public generally. In such cases the parlyinjured is properly named as the relator. The writ of mandamus is in this State so far a prerogative writ that it ought regularly to issue only in the name of the State. Lyon v. Rice, 41 Conn. 245" court="Conn." date_filed="1874-04-15" href="https://app.midpage.ai/document/lyon-v-rice-6579837?utm_source=webapp" opinion_id="6579837">41 Conn. 245; Peck v. Booth, 42 id. 271; or by special authority of the State, as in Woodruff v. New York & N. E. R. Co., 59 Conn. 63" court="Conn." date_filed="1890-05-05" href="https://app.midpage.ai/document/woodruff-v-new-york--new-england-railroad-6582742?utm_source=webapp" opinion_id="6582742">59 Conn. 63. . But it is issued in cases where there is a private right to have a public duty performed, and where there is no other adequate remedy. Bassett v. Atwater, 65 Conn. 355" court="Conn." date_filed="1895-01-08" href="https://app.midpage.ai/document/bassett-v-atwater-6583406?utm_source=webapp" opinion_id="6583406">65 Conn. 355, 361; Brainard v. Staub, 61 id. 570. In these cases the party aggrieved should be the relator. High on Ex. Rem. § 430. The point is not of any consequence in this case. The Telephone Company, although not named as such in the application, has been treated and spoken of as the relator during the whole proceeding; and we have followed the same terms.
It is undoubtedly the true rule that wherever the performance of some municipal duty is sought to be compelled by a writ of mandamus, the writ should be directed to that officer or board of the municipal government which is specially charged with the performance of the thing ordered to be done. Farrell v. King, 41 Conn. 448" court="Conn." date_filed="1874-10-15" href="https://app.midpage.ai/document/farrell-v-king-6579902?utm_source=webapp" opinion_id="6579902">41 Conn. 448; State's Attorney v. Selectmen of Branford, 59 id. 402; State ex rel. Judson v. County Commissioners, 68 id. 16; Williams, State's Attorney, v. New Haven, ibid. 263; State ex rel. Bulkeley v. Williams, Treasurer, ibid. 131. If the municipal corporation has no such officer or board, then the writ may be directed to the municipality by its corporate name. Williams, State's Attorney, v. New Haven, supra; Dillon on Mun. Corp. § 861, and note. But mandar mus confers no new authority, and it must appear from the record that the party to be coerced has power to perform the
In looking through the present record we do not find that Mr. Towers, as the street commissioner, was charged with any duty or had any authority to give to the relator any written consent .to do in Church street in said city those things which the relator claims the right to do there. The alternative writ does not show such power, while the return expressly denies that Mr. Towers had any such authority or any authority at all in the premises, independently of the common council whose servant he is, and alleges that the common council had refused permission to the relator to put its wires into said street. The conduct of the relator itself in this behalf would indicate that its legal advisers did not quite believe that the present defendant had the power to give it the permission it asked. It made application in the first place to the common council for permission to lay its pipes in Church street, and was refused. It then applied to the present defendant. The defendant is the servant of the council, and has no authority except such as that board gives him. The common council had not given him authority to consent to the relator’s claim.
The amendment to the charter of the relator under which it makes its claim, is this: “Section 1. The Southern New England Telephone Company, a corporation organized under an Act of the General Assembly of Connecticut (approved April 19, 1882), is hereby authorized to lay and maintain its wires, and conduits for its wires, in, through, and under any public street or highway in any city, borough, or town in which said company now maintains, or may hereafter maintain, its telephones and wires and it may construct and maintain manholes and ventilating shafts in connection with such conduits, provided such wires, conduits, manholes and shafts are so constructed that when completed they will not interfere with the ordinary use of such streets and highways by the public, and provided that in.the construction of such conduits and the laying of such wires no gas or water pipes and no sewer shall be removed or changed in such manner as to interfere with the uses for which such pipes and sewers have been laid.
The relator insisted that, under the aforesaid amendment to its charter, it had the absolute right to lay conduits and ducts for its exclusive use and under its exclusive control, in the streets of New Britain and especially in Church street, and refused to submit to any regulations that might be made by the common council of said city whereby other overhead wires should be taken into the conduits and ducts of said company, or whereby the wires of the said company should be taken into the conduits built by the city. The relator said that by the proper construction of its amended charter it had the right to so insist, and that it was the duty of the authorities of the said city to give it permission so to do, without any regulation restricting its exclusive use and control of its conduits, wires and ducts.
We are not able to agree with the relator in this construction. While the relator is a public corporation in the sense that it must give all persons the same measure of service for the same measure of money, yet in the sense that it performs any public duty or any public service, it is not a public corporation. It renders no service for which it does not require full pay. It is not seeking to put its wires underground in Church street in the city of New Britain, or in any other street, from any public motive. It is seeking to make gain. It is acting not upon compulsion, but for its corporate profit. It seeks to increase its private income. If it does any public
The primary purpose for which a street is laid out and maintained is for a highway, a place common to all for passing and repassing on foot and in vehicles, at their pleasure or as their needs may require. The State imposes the duty to lay out all necessary highways and to maintain them in a reasonably safe condition, on towns and such other municipalities as have the care of highways. And to enforce the performance of this duty a statutory liability rests upon the town or municipality. This duty and liability rested on the city of New Britain in respect to Church street, both by its charter and by the public law.
Every time a street is excavated to lay therein a sewer, a gas pipe, or a water main, or any other underground pipe or conduit, for the time being that part of the street is made unsafe for public travel. Every time these pipes or conduits need to be repaired, and every time a householder on the street desires to make a connection with any one of these pipes, the street must be dug up, and for a limited time the street is made unsafe. If, in respect to any of these excavations, the municipal authorities should be negligent as to guarding them or warning travelers of their existence, the municipality may be compelled to pay damages to any one injured thereby. Of course the greater number of these underground pipes or wires there are, the greater is the burden of the municipality, and the greater the vigilance winch the authorities must exercise. The city of New Britain is in respect to its highways like every other town in the State. It rests under an obligation to keep all its highways in reasonable repair. All the towns are compelled to act in this be
So long as the legislature leaves this duly and liability in respect to highways resting upon towns, as it now does, it is not to be supposed that any right will be given to the relator or other like corporation to do anything in a highway whereby the burden of that duty and liability will be increased, unless such right is exercised under the control and regulation of those officers in the town or city who are charged with the duty of taking care of the highways. So long as this liability remains, the authority of the town in respect to its highways must be deemed to be superior to any other.
We think the amendment of the relator’s charter should be construed in the light of the considerations we have mentioned. So construed, it does not take away from the town authorities their superior right of control over the highways. So construed, it does not give to the relator in respect to highways the power which it claims.
The return sets forth that there are in the streets of New Britain, other than the wires of the relator, overhead wires for telephonic, telegraphic, fire alarm, and electric lighting purposes; that said city desires, so far as is practicable, to get underground all the overhead wires now in use in said city, but it desires to attain that end by a plan whereby there shall be as few conduits and ducts as possible, and whereby public travel upon the streets and highways, and the sewers and gas and water pipes under the surface of said streets, shall be-the least interfered with; that the common council of the said city, through “its proper committee, signified to the relator its willingness to consider and adopt, under reasonable regulations, plans relating to said underground wires of the relator and the laying of conduits and ducts for the passage of such wires. It further sets forth that the common council of the city “ has had and still has under consideration the matter of underground wires in said city, and is by a proper committee investigating the plans and methods in use in other cities, and intends, within a reasonable time, which has not yet expired, to make by a proper ordinance reasonable regu
It seems to us that in doing the things so set forth, the common council is acting clearty within its authority, and that there is nothing in the amendment of the charter of the relator by which it can be required to do otherwise. We think the return shows a clear right to the defendant to refuse obedience to the alternative writ; and we think it would show an equally clear right to refuse, if the alternative writ had been addressed to the city, or to its common council, instead of to the present defendant.
There is no error.
In this opinion the other judges concurred.