Appeal of Spencer

• Decision Date: 06 October 1905
• Citation: 78 Conn. 301,61 A. 1010
• Court: Connecticut Supreme Court
• Parties: Appeal of SPENCER. Appeal of STOUGHTON.

61 A. 1010

78 Conn. 301

Appeal of SPENCER. Appeal of STOUGHTON.

Supreme Court of Errors of Connecticut.

Oct. 6, 1905.

Appeal from Superior Court, Hartford County; George W. Wheeler, Judge.

Petition by the selectmen of the town of East Hartford for the abolition of a grade crossing. From the order entered by the railroad commissioners, Selden W. Spencer and Ellen P. Stoughton, property owners, appealed to the superior court, where a judgment for the separation of the grades was rendered, and such property owners again appeal. Reversed.

William F. Henney, for appellant Stoughton. Theodore M. Maltbie and Percy S. Bryant, for appellants Spencer and town of East Hartford. Charles M. Joslyn, for appellee Hartford St. Ry. Co. Edward D. Robbins, for appellees New York, N. H. & H. R. Co. and New England R. Co.

PRENTICE, J. Three lines of tracks of the New York, New Haven & Hartford Railroad Company cross at grade the main highway in the village and town of East Hartford. The Hartford Street Railway operates a line of its road along said highway upon both sides of said crossing, but not over it. In 1903 the street railway company, acting under legislative authority, was preparing to carry its tracks over said crossing by means of a trestle. The selectmen thereupon presented their petition to the railroad commissioners for the separation of the grades at the crossing. After due notice and hearing the commissioners issued an order requiring such separation and prescribing the manner thereof and the changes to be made in the crossing and in the approaches thereto. The plan contemplated the carrying of the tracks of the steam road over the highway, and involved both the depression of the highway and the elevation of the railroad roadbed. From this order two property owners interested took appeals to the superior court. These are the cases before us.

One of the appeals specifically assigns as a ground for relief that the order of the commissioners was illegal, because not made in conformity to Gen. St. 1902, § 3718. The illegality relied upon was the alleged failure of the commissioners to communicate their decision to the parties within 20 days after the final hearing. Upon the argument counsel for both the railroad and railway companies contended as the consequence of the same claimed state of facts that the superior court was without jurisdiction, since the order appealed from was void. Upon this preliminary question, which confessedly was a proper one for judicial review, the court rightly held, and it matters not whether it did so as a matter of law or of fact, that the commissioners' order was not void, and that the court was not for that reason without jurisdiction. The provision of section 3718, requiring the commissioners to communicate certain of their decisions to the petitioners and to all persons to whom notice of hearing has been given within 20 days after the final hearing, is directory and not mandatory. "It is, of course, difficult to lay down a general rule to determine in all cases when the provisions of a statute are merely directory, and when mandatory or imperative; but, of all the rules mentioned, the test most satisfactory and conclusive is whether the prescribed mode of action is of the essence of the thing to be accomplished, or, in other words, whether it relates to matter material or immaterial—to matter of convenience or of substance." Gallup v. Smith, 59 Conn. 354, 358, 22 Atl. 334, 335, 12 L. R. A. 353. See, also, to the same effect, Colt v. Eves, 12 Conn. 243. In the determination of the question as to whether or not a provision as to the proceedings of a public officer is of the essence of the thing to be accomplished, the cases agree that significance is to be attached to the nature of the act, and also the language and form in which the provision is couched, as, for instance, whether or not it is, on the one hand, affirmative and such as would naturally be chosen to prescribe directions for an orderly and proper dispatch of business, or, on the other, negative or prohibitive, or expressive of a condition precedent, or appropriate to the creation of a limitation of power. People v. Allen, 6 Wend. (N. Y.) 486; Pond v. Negus, 3 Mass. 230, 232, 3 Am. Dec. 131; Bladen v. Philadelphia, 60 Pa. 464; Pearse v. Morrice, 2 Ad. & El. 84, 96. If the subject-matter and language of the present statute be examined in the light of these principles, it will be seen that the provision in question is one which relates to the communication to the parties concerned of the results of a hearing; that the language which expresses it is affirmative in its character, and such as would naturally be used to secure the prompt and proper dispatch of public business; that neither negative nor prohibitive language appears in the act; and that there is nothing contained in it which is naturally expressive of an intention to make compliance a condition precedent to action, or to thereby create a limitation of power. We are therefore of the opinion that it is not of the essence of the thing to be accomplished—that it relates to a matter of convenience, and not of substance.

The only other questions presented to the court, or considered and determined by it, related to the merits of the plan for the separation of the grades which was adopted and ordered executed by the railroad commissioners and of other plans adapted to the same end. The court entered upon an exhaustive investigation of these questions, and as the result rendered judgment setting aside the order of the commissioners and directing the abolition of the crossing in accordance with another plan and other specifications original with itself. The present appellants assign this action as error, alleging that, in pursuing the course it did, the court exceeded its powers. The broad claim thus stated assumes two forms in the reasons of appeal and argument. It is said that the statutes (Gen. St. 1902, §§ 3718, 3747) do not in terms undertake to confer upon the superior court upon appeals of this character the powers which were exercised. The claim, however, which is most strenuously urged, is that any legislative attempt to confer such power would be in contravention of the prohibitions of our Constitution. We are of the opinion that the court was right in interpreting the statutes as intending and purporting to confer upon it the authority to do in general what it did. With certain matters of detail which are specially objected to we need not now concern ourselves.

There remains to be considered the constitutional question presented. This question involves the underlying and fundamental one of the limitations which in our scheme of constitutional government and under our Constitution are imposed upon the powers which may be exercised through the judicial department. The question is not one new to our deliberations. None other, perhaps, has been more frequently before us in recent years, or had a more deliberate consideration and exhaustive discussion. This discussion need not be rehearsed. It is sufficient to recall the conclusions which have been reached and carefully stated and reiterated. "The incapacity of the Legislature to execute a power which is essentially and merely a judicial power, and of the judiciary to execute a power which is essentially and merely a legislative power, * * * are fundamental to the very existence of constitutional government as established in the United States." Norwalk Street Ry. Co.'s Appeal, 69 Conn. 576, 592, 37 Atl. 1080, 1085, 39 L. R. A. 794. "But no dicta of judges, no doubtful or improper legislation, can alter the plain fact that in 1818 the people, in the exercise of their sovereignty, granted to the General Assembly, then constituted, the legislative power, and forbade their exercise of other than legislative power unless specially granted, and granted to this court and other courts, then constituted the judicial department, the judicial power, and forbade their exercise of other than judicial power." Norwalk Street Ry. Co.'s Appeal, 69 Conn. 576, 592, 37 Atl. 1080, 1085, 39 L. R. A. 794. "While the necessity and right of each department to use the means requisite to its unfettered operation is clear, it is equally clear that when one department, not only uses the means appropriate to another, but uses them for the purpose of executing the functions of that other department, it is not in the exercise of its granted power." Norwalk Street Ry. Co.'s Appeal, 69 Conn. 576, 597, 37 Atl. 1080, 1087, 39 L. R. A. 794. "The incapacity of the judicial department, under our Constitution, to exercise functions that are essentially and distinctively executive or legislative, unless as incident to the exercise of some legitimate judicial power, was so deliberately considered and settled in the recent case of Norwalk Street Ry. Co.'s Appeal, 69 Conn. 576, 37 Atl. 1080, 38 Atl. 708, 39 L. R. A. 794, and the application of this constitutional prohibition was then so fully discussed, that we deem it unnecessary to say anything further on the subject now." Malmo's Appeal, 72 Conn. 1, 4, 43 Atl. 485, 486. "It is, however, true that a particular function may be so near the border line of judicial power that its definition calls for subtle distinctions, and its nature depends to an extent on the purpose and manner of its use; and in respect to such a function its long...