Willard v. Warden of Killingworth

| Conn. | Jul 15, 1830

Daggett, J.

There are a number of errors assigned; but as the Court is satisfied, that the judgment must be reversed for the third and fourth errors assigned, those only will be considered.

The by-law of the borough of Killingworth was inoperative without the act of the town of Killingworth assenting to it. This was provided for, expressly, in the charter incorporating the borough. When then the vote of the borough was offered in evidence, in support of the plaintiffs’ declaration, it was essential to show, that it hadbeen assented to, by the town. This was attempted to be shown, by a vote of the town, passed at a town meeting holden at Killingworth, on the 2nd of October, 1820. The defendant objected to the reading of that vote, unless it further appeared, by legal testimony, that the town-meeting at which the vote was passed, was specially warned for that purpose. The objection was overruled, by the justice ; and the vote was read. This is, in substance, the matter stated in the third and fourth assignment of errors.

Here, it is admitted, by the counsel on both sides, that according to the doctrine of this Court, in Hayden v. Noyes, 5 Conn. Rep. 391. any act of a borough or town, abridging the right of any portion of the people of this state, except its own inhabitants, to take shell fish in any free and common fishery, was void, unless it appeared, that the meeting, at which the act was passed, was specially warned for that purpose. I feel no disposition to disturb that decision.

But, it is insisted, by the defendants in error, that the plaintiff in error was bound to show, that no such warning was given. The plaintiff, on the other hand, contends, that it became the party seeking to enforce this by-law of the borough to show such a vote of the town as the law requires; and that such a vote of assent could not be shown, unless it also appeared, that meeting at which it was passed, was specially warned for that purpose. This doctrine I am inclined to adopt as being reasonable, and in analogy to general principles which govern such questions. The borough and the town are, confessedly, inferior corporations. They act not by any inherent right of legislation, like the legislature of the state; but their authority is delegated; and their powers, therefore, must be strictly pursued. Within the limits of their charter, their acts are valid; without it, they are void. It having been established, in the case of Hayden v. Noyes, above cited, that to render an act of a town, precisely of this character, valid, it must appear, that the meeting of the town had been specially warned for that purpose; and this not appearing on the doings of the town, in this case, nor from any proof aliunde to establish the fact, the judgment is erroneous. Perhaps it should appear on the face of the proceedings; but at least, he who seeks to enforce the act, should prove such warning to have been given. In my view of the case, therefore, the judgment is to be reversed.

The other Judges were of the same opinion.

Judgment to be reversed.