Webster v. Town of Harwinton

| Conn. | Apr 15, 1864

Butler, J.

The argument of the plaintiffs in error on the first point in this case assumes that the towns of this state have inherent powers of legislation and taxation, other than those expressly granted to them or necessary to the performance of their duties as territorial and municipal corporations, and among them the power of legislation and taxation in aid of the national government in times of public peril. The authorities cited are with one exception historians, and certainly the towns have been liberally, and, if regarded as subordinate and auxiliary instrumentalities, deservedly praised by them. Doubtless too, in thus praising them they have said, some of them, that when the constitution of 1689 was framed and adopted by the people of the towns of Hartford, Windsor and Wethersfield, those towns gave, up apart of their corporate powers as they received them from the free planters, and retained the rest in absolute right. But these views have been expressed by them without sufficient reflection or examination, and are not correct in principle or sustained by our colonial records or by any adjudication of our courts. As the plaintiffs found their motion in error on that claim of reserved power in the towns, and have urged it with apparent confidence, we will briefly examine it.

Corporations aggregate are created by the law of some superior, conferring powers upon the members of an association not otherwise possessed by them, and giving them as associated for certain purposes expressed in their charters, legal individuality, so that all can act as one in regard to those purposes, and such action be considered or contemplated in the law of that superior as the action of one artificial being.

The free planters of Hartford, Windsor and Wethersfield had no patent from the king.- They emigrated from Massachusetts, which was then an organized commonwealth, and with the consent of that commonwealth, but they received from Massachusetts no corporate powers. They came from three different towns in as many parties, and when they settled themselves down on the banks of the Connecticut, they settled in three different places, and could and did organize themselves and establish governments as plantations or towns, and as one colony, and with a general court or legislature for all, and thus protect themselves, and make and wage offensive and successful war against their hostile Indian neighbors. But the inhabitants of the several plantations and towns obviously could not and did not constitute themselves corporations nor were they created such by any superior government, existing or of their own creation, and were not such in any sense of the term which can be recognized by a jurist in determining a question of constitutional law. They and all the other towns of the state, however, are now corporations, and of course have charters. What are those charters and whence derived ?

Clearly they are not derived from any acts of their own previous to the adoption of the constitution of 1639, constituting them corporations, for that could not be, nor from any of the special provisions of that constitution, for there are none such in it. That extraordinary instrument purports on its face to be the work of the people—the residents and inhabitants—the free-plauters themselves of the three towns. It recognizes the towns as existing municipalities, but not as corporate or independent, and makes no reservation, expressly or impliedly, of property or of legislative power in their favor. It established a general court or assembly, and authorized the towns to elect and send deputies to compose it, but it prescribed their number and the manner in which they should be elected; and having thus provided a legislative body it gave that body exclusively supreme power, their entire sovereignty and territory not possessed by individuals, in the following comprehensive words—“ In which said general courts shall consist the supreme power of the commonwealth, and they only shall have power to make laws or repeal them, to grant levies, to admit freemen, dispose of lands undisposed of to several towns or persons, and also shall have power to call either court or magistrate, or any other person whatsoever, into question for any misdemeanor, and may for just cause displace or deal otherwise according to the nature of the offense; and also may deal in any other matter that concerns the good of this commonwealth, except election of magistrates, which shall be done by the whole body of freemen.”

The men who thus conferred supreme and exclusive legislative, executive and judicial power, and all power except that of electing magistrates, upon the general court, spoke only when they had occasion to speak, and meant all they said ; and that entire and exclusive grant would not have left a scintilla of corporate power remaining in themselves, as inhabitants of the towns, if any such had then, existed.

That constitution was adopted on the 14th of January, 1639, and at the first regular business session, in October of the same year, the general court exercised the power thus conferred, and “ ordered ”—(that was the style of their enactments,) that “ 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, and all other commodities arising out of their own limits bounded out by the court, (the liberties of the great river excepted,) 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, as also to impose penalties for the breach of the same, &c.”

That provision was in force till the revision of 1672, when it was re-enacted in the following form :—“ The settled and approved inhabitants of every town in this state, qualified and having estate as is hereafter in this act provided, shall have power to make such orders, rules and constitutions as may concern the welfare of their town; provided they be not of a criminal but of a prudential nature, and that their penalties exceed not three dollars and thirty-four cents for one offense, and that they be not repugnant to the laws and orders of this state.” -Statutes, ed. of 1808, page 649. The last provision remained in force until the revision of 1821, when it was re-enacted in the following form :—“ The inhabitants of the respective towns, in legal meeting assembled, shall have power to make such orders, rules and regulations for the welfare of the towns as they may deem expedient, and to enforce them by suitable penalties; provided such regulations do not concern matters of a criminal nature, are not repugnant to the laws of this state, and the penalties do not exceed four dollars for one breach.” Revision of 1821, page 415. And in that form it is still in force. Rev. Stat., tit. 3, sec. 29; Compilation of 1854, page 163.

Now that provision enacted by the general court in 1639, was both a grant and a limitation of vital power, and was intended to embrace towns thereafter created (as they were in fact) by law, and is utterly inconsistent with the idea of a reserved sovereignty, or of any absolute right in the towns, and constituted the towns corporations, and the continuance of it has continued them so; and that provision, with the numerous special provisions then and since made, prescribing'their officers, and regulating their meetings and other proceedings, and imposing and prescribing their duties as subordinate municipal corporations, constitute their charters; and thus their powers, instead of being inherent or reserved, have been delegated and controlled by the supreme legislative power of the state from its earliest organization.

And such is the law as uniformly recognized in this court. Hayden v. Noyes, 5 Conn., 391" court="Conn." date_filed="1824-07-15" href="https://app.midpage.ai/document/hayden-v-noyes-6573901?utm_source=webapp" opinion_id="6573901">5 Conn., 391; Willard v. Borough of Killingworth, 8 id., 254; Higley v. Bunce, 10 id., 442; New London v. Brainard, 22 id., 552; Abendroth v. Greenwich, 29 id., 356; Booth v. Woodbury, ante p. 118.

The case of Hitchcock v. Litchfield, (1 Root, 206" court="Conn. Super. Ct." date_filed="1790-08-15" href="https://app.midpage.ai/document/hitchcock-v-town-of-litchfield-6613665?utm_source=webapp" opinion_id="6613665">1 Root, 206,) the only case cited and relied upon by the plaintiff in error, is not in point. At that time troops were raised by the state, and by an assignment of quotas to the towns. By public law which was both authoritative and mandatory, it was made the duty of each town to raise its allotted quota; and a soldier who had been enlisted by the town of Litchfield to fill its quota, and served accordingly, sued for the bounty offered by the town. One of the defences was a want of consideration, but the court held the public service, and the performance of it by the enlisted man, a sufficient consideration. We find no recognition of the doctrine that the town acted by virtue of any inherent or reserved power of legislation in that case, and know of no decided case, nor of any page of the colonial or other records of the state, in which the existence of such a power has ever been recognized.

The second assignment of eri’or is equally withoxxt foundatioix. That the remedy at law in such a case is not or may not be fully adequate, and an injxxnction may properly issue, was settled in this coxxrt in the casó of New London v. Brainard, 22 Conn., 552" court="Conn." date_filed="1852-07-15" href="https://app.midpage.ai/document/city-of-new-london-v-brainard-6576677?utm_source=webapp" opinion_id="6576677">22 Conn., 552.

There is no error in the record.

In this opinion the other judges concurred.