Appeal of Norwalk St. Ry. Co.

• Decision Date: 13 July 1897
• Citation: 69 Conn. 576,37 A. 1080
• Parties: Appeal of NORWALK ST. RY. CO.
• Court: Connecticut Supreme Court

37 A. 1080

69 Conn. 576

Appeal of NORWALK ST. RY. CO.¹

Supreme Court of Errors of Connecticut.

July 13, 1897.

Appeal from superior court, Fairfield county; Frederick B. Hall, Judge.

Petition by the Norwalk Street-Railway Company to Frederick B. Hall, a judge of the superior court, for the establishment of a plan for the location and construction by petitioner of a street railway in the city of Norwalk. From a judgment as prayed, the mayor and council of the city of Norwalk appeal. Reversed.

The petition in this case represents that on April 4, 1896, the Norwalk Street-Railway Company presented a plan for the location and construction of its railroad in the streets of the city of Norwalk, to the mayor and council of said city, and that the mayor and council failed to notify the petitioners, within 60 days of that date, in writing, of their decision upon said plan, and asks the judge to accept or modify the same, as he might deem equitable. Due service of the petition was made. Upon the hearing, the mayor and council moved that the "appeal" be dismissed, "because the questions raised by this appeal involve only the consideration and determination of matters not of a judicial character, and the tribunal to which the appeal is taken has no jurisdiction to hear and determine any matters except those of a judicial character." This motion was denied, and the judge rendered a judgment accepting and adopting a plan (being the plan presented to the mayor and council, modified in some respects) for the location and construction of the railroad. The only questions raised by the assignment of errors, and pressed in argument, were: Can the "superior court or a judge thereof" validly exercise a power which is not "a judicial power," within the meaning of the constitution? Was the action of the judge in this case an exercise of such judicial power?

Goodwin Stoddard and E. M. Lockwood, for city of Norwalk.

John W. Ailing and George D. Watrous, for Norwalk St. Ry. Co.

HAMERSLEY, J. (after stating the facts). The act of 1893² confers upon city councils certain powers in establishing regulations for the location, construction, and operation of street railways, and requires a council, if requested by a railway company, to take some action within 60 days, and to notify the company in writing of its action. Whenever a council fails to give such written notice, the act of 1895 ³ confers the same powers upon the "superior court or any judge thereof," to be exercised on application of a railway company, and calls this application an "appeal." The power so conferred on the court is described in the act of 1893 as the power to approve and adopt a location and lay-out of a street railway, with such modifications therein as shall seem proper, in respect to the streets to be occupied, the location of the same as to grade and to the center line of the streets, and changes to be made in the street, the kind and quality of the track to be used, the motive power to be used, and the method of applying the same. Can such powers be conferred on the superior court? The limitation of their exercise to cases where there has been a prior failure of a municipal board to act cannot affect the principle involved. If the legislature can confer the power in a limited class of cases by calling an original application for its exercise an "appeal," it can confer the power in all cases without limitation.

This court has said in Brown v. O'Connell, 36 Conn. 432, 446: "No judicial power is vested by the constitution in the general assembly either directly or as an incident of the legislative power, and the general assembly cannot confer it * * * it was one of the objects which the people had in view, in framing and adopting the constitution, to devest the general assembly of all judicial power. * * * While the entire legislative power is vested in the general assembly, the judicial power is separated from it, and vested in the courts 'as a separate magistracy.' It is obvious * * * that the judicial power is not conferred by the general assembly, but vests, by force of the constitution, in the courts. * * * it was therefore competent for them [the legislature] to provide for the organization of the court in question [a city police court], and to define the jurisdiction it should possess; and, when so constituted, the judicial power of the state vested in it, by force of the constitution, to the extent of the jurisdiction so defined." In an opinion by Judges Hinman, Sanford, Butler, and Dutton, the constitution is thus defined: "The constitution of the state, framed by a convention elected for that purpose, and adopted by the people, embodies their supreme original will in respect to the organization and perpetuation of a state government, the division and distribution of its powers, the officers by whom those powers are to be exercised, and the limitations necessary to restrain the action of each and all for preservation of the rights, liberties, and privileges of all, and is therefore the supreme and paramount law, to which the legislative, as well as every other branch of government and every officer in the performance of his duties, must conform. Whatever that supreme original will prescribes, the general assembly and every officer or citizen to whom the mandate is addressed must do; and whatever it prohibits, the general assembly and every officer and citizen must refrain from doing; and if either attempt to do that which is prescribed in any other manner than that prescribed, or to do in any manner that which is prohibited, their action is repugnant to that supreme and paramount law, and invalid." Opinion of the Judges, 30 Conn. 593.

It is claimed that Wheeler's Appeal, 45 Conn. 313, recognizes a sovereign power in the legislature, not derived from the constitution, in addition to that embraced in the grant of legislative power, and unrestrained by the division of the powers of government into distinct departments; and this case is relied on as justifying the legislation now in question. It is unnecessary to discuss the precise point determined by the judgment in Wheeler's Appeal, but the ground on which the opinion seeks to justify the judgment is erroneous. It is this: The opinion says it is "obvious from the past history of our own jurisprudence and long-continued legislative practice that we have reserved a much larger field for legislative action than has ever been recognized" in other states. This divergence is due "in part, and perhaps principally, to the very extensive powers which were originally conferred on the general assembly by the charter of Connecticut. Under this charter, the general assembly exercised executive and judicial functions. Upon the adoption of the constitution of 1818, which divided the powers of government, it was logical to hold that all judicial functions of the general assembly were at an end; and this claim was made at an early date, but not accepted by this court. Starr v. Pease, 8 Conn. 547; Day v. Cutler, 22 Conn. 625; Booth v. Town of Woodbury, 32 Conn. 126. If, then, an act of the state legislature is not against natural justice or the national constitution, and it does not appear affirmatively and expressly that there is some provision in the constitution forbidding it, we must hold it to be intra vires and valid."

There are no affirmative and express provisions in the constitution forbidding the exercise by the general assembly of the equity jurisdiction which in former days was exclusively exercised by the "general court"; and so the proposition asserted is broad enough to justify acts of the general assembly administering this branch of jurisprudence. Such a doctrine is subversive of the American idea of constitutional government. It affirms that the checks established by the division of governmental power have no existence in this state; that when the constitution says, "The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy," it means, "The general assembly shall exercise every power of sovereignty which it is not forbidden to exercise by some affirmative and express provision of the constitution;" that the mandate, "The legislative power of this state shall be vested in two distinct houses, to be styled the 'General Assembly,'" does not mean what it says, but means, "The governor and council and house of representatives in general court assembled" shall continue, under the style of the "General Assembly," to exercise the supreme power of the state in all matters whatever not forbidden by some affirmative and ex press provision herein contained; that the mandate, "The judicial power of the state shall be vested in the supreme court of errors, the superior court," etc., means nothing, or means, "such portion of the judicial power as the general assembly shall not exercise by itself or other agencies." This doctrine originates in an expression in the opinion of Daggett, J., in Starr v. Pease, supra (Hosmer and Bissell, JJ., concurred in the judgment, and Peters, J., dissented), an expression not necessary to support the judgment rendered, for the validity of a legislative divorce— the matter in dispute— must rest on the claim that it is a law fixing a status on grounds of public policy, and is not a mere adjudication of private rights. Maynard v. Hill, 125 U. S. 190, 8 Sup. Ct. 723. Judge Daggett says that it is urged that by the "New Constitution" there is an entire separation of the legislative and judicial departments, and that now the legislature can pass no act not clearly warranted by the constitution; that precisely the opposite of this is true; that from the settlement of the state there have been certain fundamental rules by which power has been exercised, which were embodied in an instrument called by some a "constitution" and by others a "charter"; that the charter gave extensive power to the legislature, and left...