Woodruff v. New York & New England Railroad

59 Conn. 63 | Conn. | 1890

Lead Opinion

Andrews, C. J.

Prior to the passing of the several resolutions hereinafter mentioned, the New York & New England Railroad, a double track railway from Boston to the Hudson river, and the New York, New Haven & Hartford Railroad, another double track railway from Boston by way of Springfield to the city of New York, crossed Asylum street, a much traveled highway in the city of Hartford, side by side and at grade. The situation was further complicated by the fact that each of the railroad companies had one or more side tracks crossing the street parallel to their main tracks and extending a considerable distance each way therefrom, and that the passenger station used in common by the two companies was immediately contiguous to said street. It was a condition of things exceptional and dangerous—dangerous to travel along the street and dangerous to every train on both the railroads, and perhaps most dangerous of all to persons approaching or leaving the station. In the year 1884 the General Assembly, in the exercise of its supreme authority, determined that it was necessary for the public safety that this dangerous condition be changed by separating the grade between the street and the tracks of the railroads, and to that end passed a resolution, approved April 4th, 1884, and which is on page 1026, volume 9 of the Special Laws. The sixth section of that resolution was amended by a resolution approved March 3d, 1885, found on page 21 of volume 10 of the Special Laws. In the year 1885 another resolution was passed, and approved March 26th, 1885, found on page 80 of volume 10 Special Laws; and in 1886 still another resolution, approved February 19th, 1886, found on page 212, of volume 10 Special Laws. These are the several resolutions referred to in and made part of the application in the present case.

In reference to these resolutions, and speaking of them all as parts of one act, as in fact they are-, this court in Woodruff v. Catlin, 54 Conn., 295, said:—“The act in scope and purpose concerns the protection of life. Neither in intent nor fact does it increase or diminish the assets either of the city or of the railroad corporations. It is the exercise of the governmental power and duty to secure a safe highway. The legislature having determined that the intersection of two railways with a highway in the city of Hartford at grade is a nuisance dangerous to life, in the absence of action on the part either of the city or of the railroads may compel them severally to become the owner of the right to lay out new highways and new railroads over such land and in such manner as will separate the grade of the railways from that of the street at intersection; and may compel them to use the right for the accomplishment of the desired end; may determine that the expense shall be paid by either corporation alone or in part by both, and may enforce obedience to its judgment. That the legislature of this state has the power to do all this for the specified purpose, and to do it through the instrumentality of a commission, it is now only necessary to state, not to argue.”

To abolish this grade crossing and to insure the safety of the public thereat the legislature invested its commission with very broad powers. It was authorized and empowered to order the carrying of the tracks and the structure therefor over Asylum street, and direct such a change in the grade of the street in its present line and direction as they should judge necessary and proper to the end aforesaid, and to order the railroad companies or either of them to lay out, construct and maintain a new line or lines of railroad for a distance not exceeding one half a mile on each side of the street and within three hundred feet of the center line of the present tracks of the railroads, and require any or all the present tracks within these limits to be taken up and removed; to make any and all orders relating to said improvement and to all matters and things appertaining thereto, which they might deem necessary and proper, in the same manner and to the same extent that the General Assembly itself might do and direct. And it was authorized to direct by whom, when, and how, the work should be performed. And that there might be no failure in accomplishing the purpose which the legislature had in view, it was provided how vacancies in the commission should be filled; that the decision or action of the board of commissioners had by a majority thereof should in all matters appertaining to its duties have the full force and authority .and be regarded as I-the decision and action of the board. (And finally it was ¡ authorized to apply to any court of competent jurisdiction ! for aid in any matter appertaining to said work, and to pro-j cure the enforcement and execution of their orders; and the courts of this state and the judges thereof were fully em- ; powered, upon proceedings brought by or at the instance of '■ the commissioners, to enforce by mandamus or otherwise i, the orders of the commissioners made under the authority of !■ said resolutions. \ Even with such a panoply of power the history of the commission appointed by the resolutions shows that it had no easy task. There were divergent counsels to be harmonized, rival if not hostile interests to be placated and so far as possible to be brought into accord, and there were contradictory plans to be considered, re-considered, modified, accepted or rejected.

At an early stage in its labors the commission had it in contemplation to remove the grade crossing by a plan called the “westside ” or the “Bunce” plan, which was to change the tracks of the railroads a few feet westerly from their present line and to carry the street over them upon a bridge, and had made orders and commenced proceedings towards carrying out that plan. But' on the 11th day of March, 1887, the commission voted that the vote adopting the “Bunce” or “west side” plan, and all other votes and orders theretofore made and passed in accordance therewith, and confirming, approving, renewing and re-enacting the same, be and the same were rescinded. At the same meeting it was also voted “ that the New York, New Haven & Hartford Railroad Company, and the New York & New England Railroad Company, are hereby ordered to carry their tracks over Asylum street, leaving a clear space ber tween said structure and said street of not less than sixteen feet, in general accordance with the plan and drawings submitted to the commission February 4, 1887, and marked ‘Proposed Station at Hartford, Conn., Feb. 15, 1887 and for this puipose the city of Hartford is hereby directed to lower the grade of said street under said tracks two feet; and in case of disagreement between said parties details of construction to be hereafter determined by this commission.”

The plan and the drawings referred to in this vote do not appear in the record before us. It is very evident however from the prominent reference which it received in the vote that the “ station at Hartford ” was a material if not a controlling feature in the plan thus adopted. To carry the tracks of the railroads over the street so as to leave a clear space of sixteen feet, would require the structure to be commenced from a third to a half mile distant from the street. Such a structure would necessarily have to conform to, or be conformed to by, the station. It is therefore highly probable that the entire plan according to which the two railroads were to carry their tracks over Asylum street was made to depend upon the question of that station. The more so when it is kept in mind that “ depots for passengers and freight are essential parts of the railroads themselves.” State ex rel. N. Haven & Derby R. R. Co. v. R. R. Commissioners, 56 Conn., 313.

All the parties in interest seem to have acquiesced in the order so passed. Work pursuant to the plan so adopted commenced at once and proceeded witli reasonable dispatch, so that on the 20th day of December, 1888, “ the bridges and approaches thereto for the purpose of carrying the tracks of the New York, New Haven & Hartford Railroad and the New York & New England Railroad over Asylum street in the city of Hartford, having been nearly completed in general accordance with the plans and orders heretofore made by the,board,” at a meeting of the commission held on that day at which all parties were present and were duly heard, the commission voted as follows :—“And now after consideration the hoard * * * finds that the completion of' the said improvement as heretofore ordered, the carrying out of the designs and instructions of the. legislative acts creating and regulating this board, and public convenience and necessity all require, and this board deems it necessary and proper to order and direct, and we do accordingly order and direct, that the New York & New England Railroad Company and the New York, New Haven & Hartford Railroad Company severally take up and remove their surface tracks between the line of the face of the abutment on the south side of Asylum street and the line of the face of the abutment as now located and established on the north side of Church street, so called, within thirtjr days after the new depot at said Asylum street shall be occupied and used by fsaid companies respectively.”

Of the passing of this vote and order due and proper notice was given to both railroad companies. The New York & New England Railroad Company having failed and refused to comply therewith, the board of commissioners made the present application to the Superior Court for Hartford County for a peremptory mandamus. Upon the coming in of the alternative writ the railroad company appeared and filed a motion that the matter be removed to the next Circuit Court of the United States for the District of Connecticut; which motion was denied. The company then moved that the alternative writ of mandamus be quashed; which motion was overruled. Thereupon the railroad company made its return to the alternative writ as on file; to which return the applicants demurred. The Superior Court sustained the demurrer, found the allegations of the application to be true (for the want of any sufficient answer thereto), and ordered a peremptory writ of mandamus to issue. From this order the railroad company now appeals to this court.

There is a somewhat formidable array, in number, of reasons of appeal. It is not necessary to mention them all. It will be much more convenient to group the questions as they have been presented in the progress of the case,—under the motion to remove, under the motion to quash, and under the several paragraphs of the return.

Under the charter of Charles II. the General Assembly of j the colony was the supreme judicial as well as the supreme ¡ law-making power. And notwithstanding the constitution, article fifth, section one, provides that “ the judicial power Í of the state shall be vested in a Supreme Court of Errors, a t Superior Court, and such inferior courts as the General As-j sembly shall from time to time ordain and establish,” the j General Assembly still possesses, in the highest degree that | any legislature in any state can, “ that inherent and plenary j power which enables it to prevent all things hurtful to thej comfort and welfare of society.” It has from time to time, ! and at many times, delegated “ power and jurisdiction ” to | courts and committees for the protection of the lives, limbs, I health, comfort and quiet of persons and the protection of property within the state. Wheeler’s Appeal from Probate, 45 Conn., 306, and the cases cited in the opinion ; Raymond v. Fish, 51 Conn., 80 ; Dunham v. City of New Britain, 55 Conn., 378.

This court decided in the case of Woodruff v. Catlin, supra, that the resolutions now under consideration presented an instance in which the sovereign power of the state directly interfered for the protection of life. Having determined that the grade crossing at Asylum street in Hartford was a menace and a danger to public safety which ought to be removed by separating the grade of the street from that of the tracks of the railroads, and having fixed the. proportion of the expense beyond which, in no event, should the city be charged, and having defined the limits within which the commission should have authority, it sent out its commission to perform the work. Itself passed upon and decided the general question. The details and the carrying of them out it delegated in the most explicit language to the judgment of the commission.

Without undertaking to decide whether this proceeding is a “suit of a civil nature at common law or in equity,” or whether an application for a mandamus may be removed from a state court to .which it has been made to an United States court, it will be agreed that there was no error in denying the motion to remove the cause from the state court unless there is in it some question of which the federal courts can take cognizance.

The tenth amendment to the national constitution provides that “the powers not delegated to the United States by the constitution nor prohibited by it to the states, are reserved to the states respectively or to the people.” It may therefore be stated as a general proposition that the police power in the United States is located in the states. The state is entrusted with the duty of enacting and maintaining all the internal regulations which are necessary for the preservation of rights and the prevention of injury to the rights of others. The United States government cannot exercise this power except in cases in which the power of regulation is granted to the general government expressly or by necessary implication.” Teidman on Police Power, sect. 201 ; Cooley’s Const. Limitations, 574 ; United States v. DeWitt, 9 Wall., 41 ; Patterson v. Kentucky, 97 U. S. R., 501. In the case last cited the Supreme Court of the United States said (p. 504 :)—“ By the settled doctrine of this court the police power extends at least to the protection of the lives, the health and the property of the community against the injurious exercise by any citizen of his own rights. State legislation strictly and legitimately for police purposes does not, in the sense of the constitution, necessarily intrench upon any authority which has been confided expressly or by implication to the national govern ment. The Kentucky statute under examination manifestly belongs to that class of legislation. It is in the best sense a mere police regulation deemed essential to the protection of the lives and the property of the citizens.” Nor is there anything in the Fourteenth Amendment which varies the doctrine. In Barbier v. Connolly, 113 U. S. R., 27, the Supreme Court again said in reference to that amendment:— “ But neither the amendment—broad and comprehensive as it is, nor any other amendment, was designed to interfere with the power of the states, sometimes termed their police power, to prescribe regulations to promote the health, peace, morals, education and good order of the people.” Civil Rights Cases, 109 U. S. R., 3 ; Ex parte Yarbrough, 110 id., 651 ; Rosenbaum v. Bauer, 120 id., 450 ; Mugler v. Kansas, 123 id., 623. These and many other cases which might be referred to show that no federal jurisdiction can attach to this exercise by the legislature of Connecticut of. its police authority.

Most of the reasons set forth under the motion to quash are repeated in the return and can better be considered there. Of those that are not so repeated one is, “ that the application on which the alternative writ was issued was not verified by an affidavit.” In applications brought for the enforcement of public rights an affidavit is not necessary. High on Ext. Remedies, sect. 507 ; State v. Wilmington Bridge Co., 3 Harr., 312. Another is, “ that the application was not signed by the commissioners, but by their counsel.” As the resolutions of the legislature direct the court to act upon any application brought by, or at the instance of, the commission, we think there was no error in overruling the objection. The objections based on the alleged want of service of the alternative writ were properly disregarded.

We come now to the return. This is demurred to generally and specially, as a whole and as to each of the paragraphs separately; among other reasons, because it joins in one plea matters of traverse, matters of confession and avoidance, and allegations of the legal insufficiency of the application. So far as these reasons of demurrer relate to merely formal defects, or other defects that might have been removed by any amendment which did not add to the substance of the allegations in the return, we think they were waived at the hearing below and cannot be considered here.

The alternative writ of mandamus is usually regarded as standing in the place of the complaint in an ordinary action, and it must show a primd facie case entitling the applicant to the extraordinary remedy asked for. In the present case the facts alleged in the alternative writ are the several resolutions of the legislature creating the applicants a board of commissioners and conferring on them certain powers, and the order made by them as such commissioners and the non-compliance with that order by the respondent. These facts did show a clear primd facie case. The return to an alternative writ is demurrable unless it shows a right to refuse obedience to it; and it must state the facts which justify such refusal clearly, specifically, and with such sufficient certainty that the court can see at once that such facts, if admitted or established, do furnish a legal alternative for obedience to the writ. High on Extraordinary Remedies, sections 449-460 ; State ex rel. Cothren v. Lean, 9 Wis., 279 ; Springfield v. County Comrs., 10 Pick., 59 ; Moses on Mandamus, 210 ; Commercial Bank v. Canal Comrs., 10 Wend., 25.

There is in the return before us no direct denial of the facts alleged in the alternative writ; and it is possible that even such a denial, had it been made in this case, would not have withstood the test of a demurrer. It would deny in terms what the court would be bound to know judicially to be true, that is, the existence and the terms of the legislative resolutions; while the order made by the commission and the non-compliance therewith are admitted or are shown by the exhibits made a part of the return itself. We need not discuss this. A general denial puts in issue the existence of those facts which, if they exist, constitute a primd facie cause of action or ground of defense. When these facts exist, but by reason of some extraneous features or elements affecting them they do not produce the otherwise necessary result, that element which destroys the primd facie legal effect of the facts is not put in issue by such a denial. It is new matter and must be specially pleaded. And so where a legal right to refuse obedience to a writ can be shown in no other way than by setting forth such extraneous features or elements, a return that omits them is clearly bad on demurrer.

The first paragraph alleges as a reason why the peremptory writ should not issue, that Morgan G. Bulkeley, one of the commissioners, was a citizen and a tax-payer of Hartford, and as such was interested in the result, and that by the resolutions he was made a judge in his own cause. The second paragraph alleges in substance the same reason against Henry C. Robinson, and the eighth paragraph a similar reason against Nathaniel Wheeler. It seems to us that the commissioners are in no just sense parties to this proceeding. True, it is entitled with their names, but it is so only by a mistaken use of terms. In this cause the state is itself proceeding as directly as it does in a criminal prosecution. The state is the party. It would never be thought proper that a criminal case should be entitled in the name of the state’s attorney against the person prosecuted. He is the mere agent which the state employs to carry on its own prosecution. That might be an allowable figure of speech Avliich should put the mere instrument used in the doing of an act for the actor himself. But as the statement of a fact it could never be allowed. The surgeon’s knife with which he removes the gangrene from the body of his patient can never be made to mean the same thing as the hand that Avields it. Not being parties, it follows that it is not their cause.

And there is nothing in the objection that the commissioners were judges, and were interested in the matter to be decided. They were appointed to carry out the decree of the legislature that the nuisance of the grade crossing should be removed; and they had substantially no power except to exercise a choice as to the means by which the decree should be enforced. It is true that the commission was to determine upon what should be allowed as the entire expense of the improvement, and as to how this sum should be apportioned between the two railroads and between the railroads and the city. Their action in this matter may perhaps be regarded as quasi judicial. This however is not the exact objection made, but that two of the commissioners represented respectively the city and the railroads, and that each of these commissioners was interested in this apportionment, the representative of the city having an interest as a citizen and tax-payer in making the share set to the city as low as possible, and the representative of the railroads having an interest as a stockholder in making as small as possible the sum assigned to the railroads. But the legislature deemed it best to constitute the commission by taking as its basis the three railroad commissioners, whose freedom from personal interest or bias is not questioned, and adding to them two other members, one as representing the city and interested in its behalf, and-the other as representing the railroads and interested in their behalf. The purpose of the legislature in the matter is made entirely clear by the provision of the resolution that if the member representing the city should decline to act the common council of the city should appoint a person to take his place, and if the member representing the railroads should decline to act that the railroad companies should appoint a person to take his place, this appointment requiring the concurrence of the two companies, so that he became the representative of both. The advantage of this arrangement was that the interests of each party would be thoroughly looked out for, while the interest of one of the members was balanced by that of the other, and the remaining members were a majority and could determine any matter by their vote. We know of no reason why such action on the part of the legislature is not valid. It had power to constitute the commission as it chose, while its action in this respect was perfectly fair to'wards all the parties. Whatever objection could have lain against Mr. Robinson as interested in one of the roads more than in the other and as interested in favor of the city of Hartford as a tax-payer of the city, was removed by his declining to act and the appointment by the two companies of Mr. Wheeler, who was not a tax-payer of the city and had no interest in its favor.

In the defendant’s brief it is contended that the order made by the commission, and recited in the alternative writ, was passed when the commission was functus officio. The third, fourth, fifth, sixth, seventh and ninth paragraphs of the return are all dependent upon this contention. An officer, a commission, a board, or a committee, is functus officio when it has performed its duty. The commission created by the legislative resolutions was functus officio if it liad completed the work it was set to do.' That work was to so change the condition of things at the crossing in Asylum street as to make it safe, so far as possible, for everybody ; safe for people on the railroads, safe for travellers along the street, and safe for those going to or coming from the depot. Deciding upon a plan according to which the work might be done did not do the work. Many plans might be agreed upon, changed or rejected, and new ones adopted, without advancing the work itself at all. The duty of the commission included not only such service as is done by the architect who designs the plan of a house, but also the work of the builder by whom the edifice is constructed; and the latter work is not completed until the rubbish is cleared away from the finished structure and it is made read}r for habitation. This commission could not be functus officio so long as anything remained to be done to remove the danger at that crossing.

Paragraphs ten, eleven and thirteen were apparently intended to be denials of the averments, or some of them, in the alternative writ. But as denials they are insufficient. Neither of them denies any fact directly. The tenth, for instance, denies not the fact of the resolutions but their purpose, which can be made out only by argument. So too the eleventh. An argumentative denial is no denial. Viewed in this way the demurrer to these paragraphs was properly sustained. We do not, however, rest our decision on this ground alone. “ If any pleading mistakes the effect and purpose of a statute upon which a party relies, the adverse party, in demurring to such pleading, does not admit the correctness of the construction, or that the statute imposes the obligation or confers the rights which the party alleges.” Pennie v. Reis, 132 U. S. R., 470. “ A demurrer does not admit the accuracy of an alleged construction of an instrument, when the instrument itself is set forth in the pleading or a copy annexed, against the construction required by its terms ; nor the correctness of the ascription of a purpose to the party when not justified by the language used.” Dillon v. Barnard, 21 Wall., 437. The eleventh paragraph is somewhat more full in its statement than the tenth. It says that at the time when the order of the commission took effect— namely, thirty days after the new depot was occupied by the railroads—the said New York & New England Railroad Company “ did not have any such surface tracks anywhere within the iimits named in said order as could in any event have anything to do with the intent and purpose of the said resolutions of the General Assembly, under the plans adopted either by said board of commissioners or by the plaintiffs assuming to act as such.” A demurrer to such pleading does no more than refer to the court the construction of the legislative resolutions.

It appears from other parts of the record that before the expiration of the thirty days named in the order the defendant had removed its surface tracks from the south side to the north side of Asylum street, and that such remaining part of its surface tracks as is within the limits fixed by the'order it had at all times refused to remove. It is to secure the removal of this remaining portion of surface tracks that the mandamus is asked for in this application. The defendant insists that the legislative intent and purpose authorized the commission to direct the removal of surface tracks only between the lines of Asylum street. The general question argued under these paragraphs is whether or not the commission exceeded the powers conferred upon it by the legislature in making the order, so far forth as it relates to that portion of the defendant's tracks not removed. A comparison of the order -with the resolutions shows—and it is admitted—that the tracks to which the order relates are within the territorial limits over which authority is given to the commission. It also appears—and is not denied—that it is within the terms of the power given to the commission, that is, “ to make any and all orders relating to said improvement and to all matters and things appertaining thereto which they may deem necessary and proper, in the same manner and to the same extent that the General Assembly itself might do and direct.” The legislature by the use of this language evidently considered it essential to the fulfilment of its entire scheme that the power of its commission should be as paramount anywhere outside the bounds of Asylum street, if within a half mile on either side, as between the lines of that street. In the 54 Conn., at page 295, cited above, it is said that “ the legislative act in scope and purpose concerns the protection of life ; ” “ that it was an exercise of the governmental power and duty to secure a safe highway.” Whatever then would remove danger would promote that purpose. A surface track anywhere near a passenger depot over which cars at any time might be moving would be dangerous. The removal of such tracks would tend to promote safety. And we have seen that a safe highway at the Asylum street crossing required a safe approach to the depot from the street and a safe egress to the street from the depot. Examining the resolutions in the light of the decision of this court we think the order made by the commission was within the legislative purpose. These considerations show, primá facie at least, that the order was within the power and jurisdiction of the commission.

But the commission established its own jurisdiction. Their record is that “ this board finds that the completion of said improvement as hereinbefore ordered, the carrying out of the designs and instructions of the legislative acts creating and regulating this board, and public convenience and necessity, all require, and this board deems it necessary and proper to order and decree,” etc., etc.; and accordingly it did order and direct the surface tracks to be taken up, as is set forth in the alternative writ, the controlling jurisdictional fact being that the commission did deem it “ necessary and proper ” to make the order. It is true that jurisdictional facts found by any board or other tribunal exercising only a limited statutory authority are open to be questioned in any other court. But such a finding is always taken to be true unless shown to be untrue. If the jurisdictional facts so found are made to appear primd facie to be true, they are always held to be true until some extrinsic facts and circumstances which destroy such primd facie appearance are alleged and proved. No such facts are shown in this return.

The thirteenth paragraph, so far as it denies the authority of the commission to make the order of December 20th, 1888, and so far as it denies any allegation in the alternative writ, has been sufficiently considered. Another part of this paragraph “denies that the plaintiffs were legally constituted as a board' of commissioners authorized to act as such under said resolutions of the General Assembly.” This is a denial of a legal conclusion. It denies that the plaintiffs were legally constituted as a board of commissioners. The assertion or the denial of a legal_concl usion, without showing the facts which establish .or destroy such conclusion, means nothing.' A demurrer to such a pleading must always be sustained. We might stop here. It is open to conjecture that the defendant intended to say that because Mr. Wheeler acted as one of the commission in passing the order when he was not one of the persons named in the resolutions as a member of the commission, therefore the commission was not legally constituted. But the resolutions provide that in case Mr. Robinson should refuse to act a substitute may be chosen, and provide in what way. The record discloses that Mr. Robinson did refuse to act as a member of the commission, for he appeared in another capacity. It also appears from the record that Mr. Wheeler acted as one of the commission with the acquiescence of the other members. We think the court was authorized to presume that he acted legally. Even if the court was wrong in so presuming, the order was not thereby made invalid, for the resolutions further provide that the decision or action of the board of commissioners had by a majority thereof should in all matters appertaining to its duties have the full force and authority of, and be regarded as, the decision and action of the board.

What we have said under the motion to remove the cause to the Circuit Court of the United States fully answers the fourteenth paragraph of the return. There is nothing in the legislative resolutions in violation pf the constitution of the United States. The demurrer to the fifteenth, sixteenth and seventeenth paragraphs was properly sustained upon the authority of Woodruff v. Catlin, supra. The demurrer to the eighteenth paragraph is sustained on the ground that forbidding the defendants to use their property in a way that would be dangerous to the lives of others is not a taking for public use. The prohibition of the use of property in a particular way, whereby its value becomes depreciated, is a very different thing from taking it for public use. To the nineteenth, because the legislature itself decreed the apportionment of the expenses. What we have said under the first paragraph of the return is a sufficient disposition of paragraphs twenty and twenty-two. Paragraph twenty-one is answered by Woodruff v. Catlin, supra. And see Mugler v. Kansas, 123 U. S. R., 623. The twelfth paragraph alleges only that the defendant would be subjected to great expense if the order of the commission should be carried out. The resolutions and the order being valid, and being required for the protection of life, the circumstance that its enforcement would subject the defendant to expense is not any reason against its legality. That is an argument to be addressed to the commission. So far as we have been able to examine we find no reason why the commission might not take any special damage to the defendant, or to the city of Hartford, or to the New York, New Haven & Hartford Railroad Company, into account as a part of the “entire expense,” and determine what proportion each should bear, subject only to the limitation fixed in the resolutions.

There is no error in the judgment appealed from.

In this opinion Loomis and Thayer, Js., concurred.

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Dissenting Opinion

Carpenter, J.

(dissenting.) I am clearly of the opinion that that portion of the order which is sought to be enforced by this suit is not within the jurisdiction of the commissioners. The order is divisible. It relates to tracks on Asylum street, on Church street, and on the defendant’s own land. It is not denied that they had jurisdiction to order the tracks removed from Asylum street; it is denied that they had any power to order the'other tracks removed. When I speak of the order, it will be understood that I mean the order as applied to the other tracks alone; and when I speak of tracks, that I mean those other tracks only, as they are the only ones now in controversy.

The question of authority is raised by the motion to quash, which should have been granted, for the writ fails to show a primd facie case, inasmuch as no facts are alleged which bring the tracks within the power conferred upon the commissioners ; and it appears by the statute, which by reference is made a part of the writ, that the authority granted did not embrace them. This question is distinctly raised by paragraph fourteen of the motion to quash, and the third reason of appeal assigns the denial of that motion as one of the errors complained of; so that sustaining the demurrer on technical questions of pleading does not meet and dispose of this question. The error of the court, if there was one, still remains.

What was the object or purpose of the order ? What reason is now given for removing the tracks? The reason for removing the tracks from Asylum street is apparent. The commissioners tell us in the order that the completion of the improvement requires it. The order seems to give the same reason for removing the other tracks; but manifestly that cannot be, for the improvement has been completed for more than a year and the tracks are not removed. If we may speculate, we may suppose that the order to remove the tracks from Church street had for its object the removal of another grade crossing. But the commissioners do not saj' so. On the contrary they give another and quite different reason. As to the tracks not on any street, hut on the defendant’s own land, what reason has been or can be given for removing them ? The record is silent; the plaintiffs’ attorneys are silent; the opinion of the court is silent; and I am compelled to be silent, for I am unable to imagine a possible reason for it.

I refer to these things merely for the purpose of calling attention to a peculiarity of this case; a large portion of what is required to be done is without any apparent reason.

If we look at the writ we find that it is alleged that the defendant has and now maintains certain of its surface tracks within one half mile of Asylum street, and within three hundred feet of the center line of the tracks; that the acts of the legislature authorized the commission to order their removal; that it has ordered their removal; and that the defendant refuses to obey the order. There is no allegation that their removal is necessary to the completion of the Asylum street improvement, or to the separation of grades at Church street, or that they in any wise affect the commissioners or any duty devolving upon them.

Surely they would not have us infer that they ordered their removal simply because they believed that they had the power to do so. But I insist that they have no such power. The power contended for is special, unusual, and extraordinary; in the language of the plaintiffs’ brief, “ such delegations of power as are not to be found elsewhere iu our public or private laws.” Such power is not to be presumed or inferred. If it exists at all it is because it is granted by the legislature, either expressly or by necessary implication. To this proposition all will agree. If granted it is in the statute in express terms or clearly included in some general grant of power. One clause in the act—“ may require any or all of the present tracks within said limits to be taken up and removed,” if detached from its connection and taken in an unqualified sense, apparently justifies the action of the commissioners. Thus interpreted it grants arbitrary and despotic power to order the removal of every track on either road within one half mile of Asylum street, with or without reason. It is not claimed that the legislature intended any such grant of power. It is a power which the legislature itself does not possess. It is not only against natural right, but is clearly obnoxious to the federal and state constitutions. Obviously that clause cannot be taken in an unqualified sense. Absolute in terms, it is nevertheless limited and qualified by the context and the subject matter. There are four distinct grants of power in the same sentence, of which that is the last. The others are (1) to carry the railroad over the street, (2) to change the grade of the street, (3) to order new lines of railroad. The last three are subsidiary to the first; the second expressly so— “ to the end aforesaid.” The sense requires that the third and fourth should be in like manner qualified. There can be no other rational construction. I come then to the other branch of the inquiry, is the removal of these tracks essential to the separation of the grades at Asylum street? As before remarked, no fact is alleged showing such necessity, no such fact appears in any part of the record, and I can safety assert that no such fact exists; because the fact is patent that the Asylum street crossing has been abolished, and the street rendered as safe as it can be, for more than a year, and during all that time the tracks in question have been in daily use. Counsel for the plaintiffs do not in their brief or argument specify any object or purpose outside of Asylum street which is claimed as an incident to the separation of the grades at that street. In discussing the question of authority they speak of certain powers expressly conferred ; and then add vaguely, in their own language—-language not found in the statute—“and guard the public safety and convenience in every direct and incidental thing.” Again they say:—“ It is fair to notice that the removal of these tracks by the two railroad companies, leaving the viaduct only for the exclusive use of the railroads, and opening the approaches to the station and the highways free to carriage use, is not only incidentally, but integrally, included in the problem committed by the state to the commission.” Now this may have some application to the improvement on Asylum street, but it is not explicitly claimed that it applies to anything else, although the brief enlarges upon the supposed danger at Church street, while the record is silent on that subject. Counsel then fall back upon the express authority in the statute, as follows:—■“ The act gives the commission complete jurisdiction over the railroads for a distance not exceeding one half a mile each side of Asylum street, and within three hundred feet of the center line of the present tracks of the railroads, and may require any and, all of the present tracks to he taken up and removed.” The italics are theirs. That is the only part of the statute which can be made to justify the order as now sought to be enforced; and that, as I have shown, can only be done bjr taking it in an absolute sense, which is clearly contrary to the intention of the legislature. Apparently not satisfed with the argument as it then stood, reference is made to the finding of the commission as expressed in the order, “that the completion of said improvement as heretofore ordered, the carrying out of the design and instructions of the legislative acts creating and regulating this board, and public convenience and necessity all require,” etc., as conclusive. Conclusive of what? If by that is meant that the finding of a fact within its jurisdiction is conclusive as to that fact, I agree with them. Here again I desire to call attention to the divisible nature of this order. The commission clearly had jurisdiction over the tracks on Asylum street and its finding as to them is a finding of a fact within its jurisdiction. But the question is as to jurisdiction over tracks outside of Asylum street, and over matters not connected with the Asylum street crossing. If such matters are in fact outside of the resolutions under which the commission acted, counsel admit that the finding is not conclusive.

That they are extraneous matters cannot be doubted. The commission did not stultify itself by finding that the Asylum street improvement required the removal of the tracks between Asylum and Church streets; or of the tracks from Church street; and counsel make no such absurd claim directly. But suppose there is an explicit claim and finding to that effect; such finding is of no consequence, for it is a jurisdictional matter and binds no one. Sears v. Terry, 26 Conn., 273. The opinion of the court seems to have gone far beyond the suggestion of counsel. It announces the broad doctrine that “the commission itself establishes its own jurisdiction.” With all deference I think the court confounds things that differ. Jurisdiction is one thing; exercising or assuming to exercise jurisdiction is quite another. The latter presupposes the existence of the former. The former is never the creature of the latter. Jurisdiction is the creature, not of a tribunal, not of any fact which it may find, nor of anything which it may do, but of some superior power. The proposition that the commission established its own jurisdiction assumes that the legislature created the commission with power to determine and define its own jurisdiction; whereas it has done nothing of the kind. It created the commission and prescribed definitely its powers and duties. Hence it is to the acts of the legislature, and not to the acts of the commission, that we are to look for its authority. There is but one way in which the commission can establish its own jurisdiction, and that is by usurpation. Jurisdiction thus established vanishes as soon as it is questioned.

It maj' be claimed that nothing more is meant than that the commission found certain jurisdictional facts which show that it is proper for it to exercise the power conferred. If that is the meaning it is singularly unfortunate that it was not expressed in different language. But assuming that to be so, the inference drawn from it, that the finding is prima facie proof of the fact thus found, and must stand until shown to be untrue, is of no avail; for there is no express finding that the Asylum street improvement requires the removal of the tracks now in question ; and any implication to that effect is effectually disproved by the facts stated in the eleventh paragraph of the return, which are admitted by the demurrer, and which are as follows:—“The new depot at Asylum street was first occupied and used by the defendant on the first day of July, 1889. At the expiration of thirty days from that time the defendant did not have, nor has it at any time since said first day of July had, any surface tracks across or upon said Asylum street, or any such surface tracks anywhere existing within the limits named in said order of December 29th, 1888, as could in any wise affect the safety or convenience of travel upon any railroad or on Asylum street, or as could affect the separation of the grades of the railroad and Asylum street, or the operation of any railroad across Asylum street, or as could in any event have anything to do with the execution of the intent or purposes of the resolutions.” Now if the finding of the commission cannot be regarded as a finding that the removal of all the tracks embraced in the order was essential to the completion of the Asylum street improvement, (and I think it cannot,) then the finding has no bearing upon the case; if it can be so regarded, and that the fact so found is to be taken as true until facts are alleged and proved which show it to be untrue, how, in the face of that portion of the return quoted above, can it be truthfully said that “ no such facts are shown in the return ? ”

But why look to the doings of tire commissioners for their authority? Is it because it is not elsewhere to be found? If conferred by statute that is enough; 'if not, the doings of the commissioners are of no importance. They do not tend to show any implied or incidental power; therefore their finding neither strengthens, nor is it strenghtened by, any argument in support of such power. The argument drawn from the finding must stand or fall by itself. If insufficient, as it clearly is, it is like placing another cipher in a column of ciphers to be added; the result is but a cipher. Resorting to such an argument virtually admits that the power contended for does not otherwise exist, and only serves to betray the weakness of the cause. My conclusion is, (and from that conclusion I can see no escape,) that the power to order the removal of the tracks now in question is not expressly granted in .the statute, is not given in any general grant of power, .and is not given as an incident to the one only purpose of the legislature—the separation of the grades on Asylum street.

Any other conclusion, especially any construction that will justify this proceeding, encounters grave constitutional objections. The theory of the plaintiffs, as disclosed in the writ, is, that the power to order the tracks removed is absolute. That theory seems to have been adopted by the court below and to have received the approval of this court. Thus construed, the literal terms of the statute justify the order; but the order, when enforced, clearly violates the federal and state constitutions. The case shows, (paragraph twelve of the return,) that the “tracks are owned and operated by the defendant as a part of its railroad, are within its location as legally established, and within one hundred feet of the old center line of its location, are all laid upon land owned by the defendant in fee, are necessary for the enjoyment and profitable use by the defendant of the land, and cannot be taken up or removed, as commanded by the order, or as prayed for by the plaintiffs, without doing damage to the defendant in the sum of two hundred thousand dollars.” This too is admitted to be true by the demurrer. The fifth amendment to the constitution of the United. States provides that no person shall “ be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use without just compensation.” The constitution of this state contains the same provision in nearly the same language. Art. 1, sections 9 and 11. It requires no argument to show that this order, when enforced, will deprive this defendant of its property, and that the order is not “ due process of law.” If the action of the commission is attempted to be justified on the ground that the removal of the tracks is necessary to the completion of the Asylum street improvement, or to remove a grade-crossing from Church street, or to accomplish any other public purpose, then it is a taking of private property for public use, which both constitutions prohibit unless just compensation is made therefor. It is true the commission has the power to take land, or other property which in its judgment may be necessary or proper to be taken for the purpose of the improvement which may be ordered under authority of the statute; and the act prescribes the manner in which it shall be done. But this clearly is not a proceeding under that statute. No purpose is named for which the land is wanted; there is no description of land or other property proposed to be taken; no party is named for whose benefit the land is required; and the proceedings do not contemplate the appointment of appraisers to estimate damages. It is a mandamus pure and simple. Counsel for the plaintiffs deny that any legal damage will result to the defendant. Thus it clearly appears that there is no intention of having damages appraised in this action.

It is further suggested that it is in the power of the legislature, and also of this commission, to take any property of any party concerned in causing danger to life, and to any extent needed, without compensation; and Dunham v. City of New Britain, 55 Conn., 378, is cited as sustaining that position. I will not discuss that matter, as it is not properly before us. One thing is certain, the legislature has not yet taken that ground in this matter, and has not authorized the commissioners to do so. It has expressly authorized the commission to take any railroad property or highway that might be needed for the purpose of the improvement, and have the damages appraised as required by law. And in apportioning the whole cost of the improvement the commission is in terms authorized to include land damages. I can discover in this statute no authority in the commission to take the land of either railroad company, or of the city, for the purpose of the improvement, without first having it condemned and appraised as the law requires.

It is further suggested that it will be safe to leave this matter to the judgment and discretion of the commission in the final adjustment of the whole matter. Without questioning at all the eminent fairness and wisdom of the commission, I will only say that the matter of appraising damages for land taken for this improvement has not been intrusted to it by the legislature, as it has expressly provided a different tribunal for that purpose; and that this defendant has a legal right, which cannot justly be denied it, to have the legislative tribunal appraise the damages rather than this commission. The former is in due course of law; the latter certainly is not. On the face of the proceeding, therefore, it is a taking of private property without just compensation.

In this opinion Torrance, J., concurred.