Appeal of City of Norwalk

• Decision Date: 17 July 1914
• Citation: 88 Conn. 471,91 A. 442
• Court: Connecticut Supreme Court
• Parties: Appeal of CITY OF NORWALK.

91 A. 442

88 Conn. 471

Appeal of CITY OF NORWALK.

Supreme Court of Errors of Connecticut.

July 17, 1914.

Appeal from Superior Court, Fairfield County; Howard J. Curtis, Judge.

Petition by the City of Norwalk to the Public Utilities Commission for the apportionment of the cost between it and the Connecticut Company, a street railway company, of a bridge over the Norwalk river.From an order of the superior court sustaining a demurrer to the appeal and reasons of appeal by the City from an order of the Commission, the City appeals.Reversed and remanded, with directions to overrule the demurrers to the reasons of appeal.

The Legislature, by special act of 1911(16 Sp.Laws, pt. 1, p. 490), authorized the town of Norwalk, through its bridge committee, to construct a bridge across the Norwalk river to replace an existing bridge on which was laid a single track of the Connecticut Company.Subsequently the city of Norwalk was incorporated as the successor of the town.The particular type, style, and dimensions of the new bridge were determined by the bridge committee under the authority of the special act, and a contract for the construction of the bridge was awarded.The city of Norwalk, through its bridge committee, then presented a petition to the Public Utilities Commission pursuant to chapter 207 of the Public Acts of 1911, representing that the old bridge was unsafe for public travel, and that it was unable to agree with the respondent, the Connecticut Company, as to the type of rail and number of tracks to be laid upon the new bridge, and also as to the proportion of the expense of the new construction that should be borne by the respondent, and asking the commission to determine these matters.

The petition was duly heard, and the commission filed a report showing that the parties had appeared with their witnesses and were fully heard, and ordering that the Connecticut Company should lay two tracks across the new bridge with an approved type of grooved rail, and should pay $16,614 as its equitable portion of the expense of the construction of the bridge.

The city of Norwalk appealed to the superior court, under the authority of sections 29-31 of the Public Utilities Act(chapter 128 of the Public Acts of 1911), from so much of the order of the commission as determined the amount to be paid toward the construction of the bridge by the Connecticut Company.The appeal sets forth the petition, the action of the commission, consisting of a statement of facts, the claims of the parties, the reasons given by the majority of the commission for their conclusions, and the order of which the substance has been above stated, together with a memorandum of dissent by one of the commission as to the rule adopted by the majority in determining the amount of the apportionment, and as to the amount so determined.To this appeal, and to the reasons of appeal included therein, the appellee demurred, and from the judgment of the superior court sustaining the demurrer, and dismissing the appeal, this appeal is taken.

John J. Walsh, of Norwalk, Edward J. Quinlan, of Greenwich, and Edwin L. Scofield, of Stamford, for appellant.Harry G. Day, Benjamin I. Spock, and Norman S. Buckingham, all of New Haven, for appellee.

BEACH, J.(after stating the facts as above).The first ground of the demurrer to the appeal is that it does not appear, nor is it alleged, that the city of Norwalk has, or ever had, any power to build the new bridge.While it is true that the petition is defective in not specifically alleging that the act of consolidation and incorporation of the city of Norwalk was approved by the electors of the town, it does appear from the appeal that the city of Norwalk was a party to the proceedings before the commission, and that it is bound by law to construct and maintain the new bridge.The language of section 29 of the Public Utilities Act is that any city aggrieved by an order of the commission, in any matter to which "it was or ought to have been made a party, may appeal therefrom to the superior court," etc.This ground of demurrer to the appeal is not well taken.

The second ground of demurrer is that the provisions of chapter 207 of the Public Acts of 1911 have no application to the bridge in question.The argument is that the bridge is a new bridge, and that, although the act requires a street railway, under the conditions stated, to pay an equitable part of the expense of constructing a new bridge, it nevertheless omits to give the commission authority to apportion the cost of a new bridge, but only gives authority to apportion the cost of repairing, strengthening, or reconstructing an old bridge.This point is too fine for practical use in the construction of the statute.The word "reconstruction," as distinguished from repair and strengthening, means rebuilding.It cannot be limited to an exact reproduction of the original bridge.Some latitude must be allowed for present and prospective changes in highway and waterway traffic, and for the expression of architectural design.Similar objections were made when the former board of railroad commissioners exercised their authority to alter the location of existing highways in eliminating grade crossings.The claim was then made that they had exceeded their powers by laying out new highways, as distinguished from relocating highways.It was held, in answer to this claim, that while the commissioners had no power to lay out a new highway as an independent matter, they did have power to lay out what was in one sense a new highway, but was in fact a substitute for the old, discontinued highway.State's Attorney v. Branford, 59 Conn. 402, 407, 22 Atl. 336;Fairfield's Appeal, 57 Conn. 167, 171, 17 Atl. 764;Meriden v. Bennett, 76 Conn. 58, 66, 55 Atl. 564.So in this statute the word "reconstruction," as used in the latter part of the act, is evidently large enough to include a reconstruction adapted to changed conditions, though the result is in one sense a new bridge, provided it is in fact a substitute, in point of highway traffic, for the old.

It is also claimed that the Jurisdiction of the commission is confined by the statute to cases where the parties have disagreed, or at least have had an opportunity to disagree, as to the necessity and character of the proposed reconstruction.But the letter of the statute is satisfied if the parties disagree either as to the...