White v. Town of Stamford, 37 Conn. 578

White v. Town of Stamford

37 Conn. 578 | Conn. | 1871

Seymour, J.

The first point pressed by the counsel for the respondents in the present case, is that the town has power to do what it is doing without the aid of special legislation.

We do not doubt the power of towns to build town halls for their public meetings, and, if the building is solely for the purposes of a hall, the town within reasonable limits must judge for itself of the size and style of the structure. But it is obvious that the building complained of is not a mere town hall. It indeed contains a hall in its third story, but the other stories are to a considerable extent to be rented, in the expectation no doubt that the rents will ultimately pay wholly or in part the expenses of the entire structure. Something of the same kind on a small scale has sometimes been done without objection in the towns and cities of the state. It is sometimes incidental to a public building that portions of it are not needed for public purposes, and these are fitted up and rented and the rents applied toward paying the expenses of the building. But in the present instance the rents are more than incidental. The enterprise evidently involves extensive arrangements for renting, and the selectmen of the town, or a committee for managing the premises, will have the control of important interests which seem to be rather private than public in their character and nature. A town is a public corporation, not adapted to carry on trade and rent property. Its citizens are members of the corporation not by choice but by compulsion of law, and ought not to be forced into a partnership in carrying on business for gain. The impolicy of entrusting to town agents the management of private business is very obvious ; and we think the legislature has not by any general law conferred authority upon towns to erect buildings for rent, and also are of opinion that the resolution of 1868 cannot be construed as giving authority to the town to erect such a structure as is being built.

That resolution is intended mainly to authorize the issue of bonds, and the hall contemplated by it is only a large common hall for public purposes, to be built simply as and for a hall. But the resolution of 1870 recites the vote of the *587town in which the plan of the building is given, and among others ratifies that vote, and expressly authorizes the town to erect the hall in pursuance of its votes. We have here then in the resolution of 1870 an express act of the General Assembly authorizing the town to do precisely that which we are asked to enjoin against being done. The petitioners are therefore obliged to say, and they do say, that the resolution of 1870 is void. And it is claimed to be void, not because it is in contravention of any provision of the constitution of the United States or of this state, but because, as the petitioners say,, it is against common right and in violation of the fundamental principles of the social compact.

The argument of the petitioners is that towns are such as branches of the government for public purposes, and that their powers should be limited to the simplest possible discharge of their necessary public duties; that a citizen of a town cannot lawfully be taxed to raise money to be expended in private enterprises and managed and controlled by agents chosen in town meeting; and that if this resolution is sanctioned as binding, then-hereafter towns and cities may by legislative authority be converted into mere trading corporations. We are not insensible to the force of the objections against extending the power of towns so as to enable them to engage in private business, but the power which the court is called on by the petitioners to exert in this case is a power to be exercised only in the clearest cases. Every presumption is properly to be made in favor of the acts of a coordinate bi’anch of the government. We are bound to presume that the whole matter was carefully considered by the legislature. The coui'ts of Connecticut have never to our knowledge exer cised the power now invoked, of holding an act of the General Assembly void, merely because of its being in violation of the fundamental principles of the social compact, and we would not commence the exercise of that power in a case of any reasonable doubt, 'and certainly would not volunteer to do" it in a case the decision of which does not necessarily call for such exercise of power.

It appears that the town has acted upon the resolution in *588controversy and the building is now well nigh completed. An injunction at this stage would produce confusion and give rise to embarrassing questions, and we all concur in holding that on these grounds the injunction asked for must be denied. We therefore put our decision on the ground that the building is now so far completed that an injunction ought not to issue, and the parties are left to whatever remedy they may have, if any, at law.

The Superior Court is advised to dismiss the petition.

In this opinion the other judges concurred.