City of New London v. Perkins

• Decision Date: 25 July 1913
• Court: Connecticut Supreme Court
• Parties: CITY OF NEW LONDON v. PERKINS.

87 A. 724

87 Conn. 229

CITY OF NEW LONDON

v. PERKINS.

Supreme Court of Errors of Connecticut.

July 25, 1913.

Appeal from Court of Common Pleas, New London County; Charles B. Waller, Judge.

Action by the City of New London against Stephen A. Perkins, as collector of taxes for the town of Groton, to restrain him from selling plaintiff's property for taxes. Decree for the plaintiff, and defendant appeals. Affirmed.

Herbert W. Rathbun, of Westerly, R. I., for appellant.

William J. Brennan, of New London, for appellee.

RORABACK, J. The defendant in his answer admitted all the allegations of the complaint, except such as alleged that the property of the plaintiff, which the defendant endeavored to sell, was used solely for public purposes, and that the plaintiff had no adequate remedy at law and would suffer great and irreparable injury.

The property against which the taxes were levied, and which the defendant as tax collector attempted to sell, was the terminus and ferry landing of the New London ferry, situated in the town of Groton, owned by the plaintiff, and operated by a lessee of the plaintiff between the towns of New London and Groton. This ferry landing and terminus was the only one owned by the plaintiff in the town of Groton. There was no other ferry running across the Thames river from Long Island Sound northerly to the city of Norwich, 14 miles from the city of New London. There were no means other than this ferry for transporting vehicles and foot passengers between the two towns. The property of the plaintiff was used solely for the purpose of a ferry slip and landing in connection with the operation of its ferry, and was all the property owned by the plaintiff situated in Groton at the time of the levy for the taxes in question. The plaintiff was and is the sole owner of the franchise for the operation of this ferry across the river Thames, and it was the duty of the plaintiff to operate and maintain it under certain conditions regulated by the special laws of the state of Connecticut. The plaintiff made no appearance before the board of assessors or board of relief of the town of Groton to make any claim that the property in question was exempt from taxation.

Section 2315 of the General Statutes, Revision of 1902, exempts from taxation all property held by municipalities for public use, with certain exceptions which do not apply to the present case. The city of New London is the owner of the franchise for the operation of this ferry. This franchise dates back to the year 1705, when the General Court of Connecticut divided the then existing township of New London into two townships; the one on the east side of the Thames river known as the town of Groton, and the one on the west side as the town of New London. This division was accepted by the inhabitants of both towns, and they mutually agreed "that the ferry ami the land and house belonging to it shall be and remain for the benefit of a free school in the town on the west side of the river." Colonial Records, vol. 4, p. 510.

Since the town of Groton was set off from the town of New London in 1705, there has been no action by the General Assembly of the state of Connecticut interfering with the ownership of this ferry by the town of New London. The operation of this ferry has been regulated by the Special Laws of the state of Connecticut. Special Laws, vol. 6, pp. 307. 577, 949; Special Laws, vol. 10, p. 166; Special Laws, vol. 12, p. 1064.

As a link of transportation by land this ferry forms a part of a public highway or a connection between New London and Groton, in which the public has rights; and as such it is a thing of public interest, in which the public have a right of way or use at all times on paying certain specified tolls, regulated and prescribed by the special statutes of the state. Property taken for tollbridges and ferries is for a public use. They are public highways. Southern Illinois & M. Bridge Co. v. Stone, 174 Mo. 1, 73 S. W. 453, 457, 63 L. R. A. 301, citing Arnold v. Covington & C. Bridge Co., 62 Ky. (1 Duv.) 372; State v. Maine, 27 Conn. 641, 71 Am. Dec. 89.

"Ferries have been not only created, but have been modified and suppressed, at the pleasure of the Legislature, like public highways, which in fact they are. Each one is confined to such tolls and subject to such regulations as are prescribed by the statute. It appears to us from all we can learn on the subject that ferries were at first, as many of them still are, considered and treated as burthens or duties imposed on towns by the Legislature for the benefit of public travel." Hartford Bridge Co. v. Union Ferry Co., 29 Conn. 210, 229. The property in question is thus devoted to a public use by act of the Legislature. The municipality is by delegation acting for the state in conducting the ferry as a purely governmental function.

It is a general rule that property which is owned by a municipal corporation cannot become the subject of taxation unless it is so provided by express legislation. Thus, for example, the city of Brooklyn was held not to have the power to impose a tax upon land located within that city and owned and used as a landing for a ferry by the city of New York.

The exemption of such property was held to apply for the benefit of a lessee. People v. Brooklyn Assessors, 111 N. Y. 505, 19 N. E. 90, 2 L. R. A. 148. The same ruling was made in Texas in respect to a public wharf. Galveston Wharf Co. v. Galveston, 63 Tex. 14, 16. The fact that the city or New London operates the ferry through lessees and derives its revenue from a rental does not make the property in question taxable. Rochester v. Town of Rush, 80 N. Y. 302; Darlington v. Mayor of New York, 31 N. Y. 164, 88 Am. Dec. 248; 4 Dillon on Municipal Corporations (5th Ed.) p. 2431, and cases cited. These considerations lead to the conclusion that this property was not taxable, and that the proceedings as to its assessment by the town of Groton should not be sustained.

The defendant contends that the...