City of Hartford v. Connecticut Co.

Citation140 A. 734,107 Conn. 312
CourtSupreme Court of Connecticut
Decision Date09 February 1928
PartiesCITY OF HARTFORD v. CONNECTICUT CO.

[Copyrighted Material Omitted]

Appeal from Superior Court, Hartford County; Newell Jennings, Judge.

Action by the City of Hartford against the Connecticut Company to secure specific performance of certain obligations of a contract, for an accounting, and for damages, tried to the court. Judgment for defendant, and plaintiff appeals. Error judgment set aside, and case remanded, with directions.

The Hartford & Wethersfield Horse Railway Company by its charter granted in 1859 (5 Sp. Laws 1859, p. 306), was authorized to locate and complete a single or double railway from a point in a certain highway in Wethersfield over this highway to the city of Hartford and thence to such point on Main street in Hartford as its directors shall designate, provided that such railway shall not be constructed over these highways without the consent of the towns or common council of the city having charge of such highways. By an amendment to its charter in 1862 (5 Sp. Laws 1862, p. 492), it was authorized to construct and operate extensions of its railway, as public convenience might require, over any of the other highways in the city of Hartford, provided that no such extension should be constructed or operated without the consent of the common council of Hartford and provided also that the grades and location of such railways, branches, and extensions should in all cases be subject to the direction and approval of the common council. The amendment further provided in section 10 that " no such railway shall be constructed over any highway, or any part thereof, without the consent of the selectmen of the towns, or the common council of the city, having charge of such highways" ; and so much of the first section of the original charter as provides that no such railway shall be constructed over any highway without consent of the towns having charge of such highways is repealed. In 1864 (5 Sp. Laws 1864, p. 619) the company was authorized to transfer to any company which has connection or is authorized to have connections with it any part of its property or franchise, or to purchase any part of the property or franchises of the connecting company. In 1885 (10 Sp. Laws 1885, p. 69), the company was authorized by the General Assembly to construct and operate a railway in Morgan street in Hartford for a short distance. In 1888, the common council of Hartford gave to the Hartford & Wethersfield Horse Railway Company permission to operate a line of its railway 1.28 miles by electric motive power, and in 1891 to operate another line of its railway from State street through Market street to Morgan street to East Hartford line for approximately one-half mile. Both of these lines were actually constructed and operated, and no percentage of the gross receipts from the operation of the same asked or demanded. In 1893 (11 Sp. Laws 1893, p. 1082), the General Assembly authorized this company to change its name to Hartford Street Railway Company, and to construct an additional line. Section 5 of this authorization provided:

" Except as otherwise herein expressly provided, this charter shall be subject in all its parts to the general laws relating to street railways and street railway companies."

On October 9, 1893, this company presented to the mayor and common council its petition for their adoption of its plan to extend its lines over various designated streets and to change the motive power on all its lines in the city now operated by horses to electricity. No final action was taken on this plan except to refer it, on January 8, 1894, to a joint special committee. On March 19, 1894, the resolution denominated the " Tucker grant" was passed by the common council. It granted among other provisions permission to the company to lay a number of tracks in named streets, and to operate all its lines by the overhead single trolley system, and provided that " the grants and privileges to equip as aforesaid are subject to all the conditions and limitations herein contained." The first was that the directors each year at a stated time should report under oath to the city clerk the amount of its gross receipts of fares received within the city limits and should pay into the city treasury each year 2 per cent. of its annual gross receipts of fares as evidenced by such report " until such time as the state law shall be so changed as to provide that taxes of street railway companies shall be paid locally instead of to the state; and, in case of such change in the law, the company shall pay annually to the city any deficiency in the amount of said taxes from the amount of said 2 per cent. on the receipts, as aforesaid." The Tucker grant was accepted by the Railway Company by its vote and further evidenced by an instrument dated March 27, 1894, which, after reciting the action of the council, concludes as follows:

" Now therefore, for a valuable consideration by it received from said city, the said Hartford Street Railway Company hereby covenants and agrees with said city that, so long as it shall operate its cars on said tracks by said system, it will protect and save harmless the city from any and all loss, cost or damage of every kind, nature or description, including damage by electrical currents to underground pipes, which it may at any time suffer by reason of the erection, maintenance and operation of said system or any part thereof; said loss, cost and damage to be determined by the judgment of a court of competent jurisdiction."

At the time of the acceptance of the Tucker grant, the Hartford Street Railway Company was operating in Hartford 9.14 miles of line, disregarding double tracking, switches, etc., of which about 1.832 were operated by the overhead trolley system. The Tucker grant gave permission for 11.96 additional miles exclusive of double tracking, switches, etc., all of which was subsequently built. Subsequently, and up to the date of this action, the Hartford Street Railway Company, and its successor, the Connecticut Company, many times petitioned the common council for its consent to the extension of these lines. Several of such extensions have been granted, but always subject to the provisions of the Tucker grant, and these have been constructed and are now operated by defendant under such consents. The Hartford Street Railway and its successor have reported, and paid to the city treasurer under the Tucker grant amounts ranging from 2 per cent., or $6,048.23, on a gross amount for the year 1896 of $303,411.70 to 2 per cent. or $53,641.33 on a gross amount for the year 1922, $2,682,066. The amount of gross fares for 1923 was $2,470,880.43, and the percentage, 2 per cent., $49,417.61. In various debates in the common council the 2 per cent. requirement in the Tucker grant was referred to as taxes.

Members of the board of street commissioners on petitions presented to the common council and referred to joint committees of its members and those of the council for extension of its lines and their electrification early in 1893, in hearings held thereon, referred to the requirement to report and pay a percentage of the gross receipts as a tax and at one time as a license fee. At no hearing or debate was any expression used by any one which could be construed that this percentage payment was equitable compensation or contribution for the additional expense which would be incurred by the city by reason of the construction and operation of the companies' lines when electrified.

The trial court found there has not been shown any additional expense caused the plaintiff by the presence of the tracks of the defendant and its predecessors in title by the operation of its cars over them or by the overhead trolley system. Nor any expense of any kind to the plaintiff which could in any sense be called additional expense by the substitution of electricity in place of horses as a motive power. There are at present in the city limits 2,700 trolley poles along the street curbs. The space between the rails comprises 28 per cent. of the surface of the street on which the rails are laid. The company has kept the area between its tracks and 2 feet outside the rails in repair, and has paid each year for sweeping, cleaning, and watering the portion of the street occupied by the railway amounting to $15,000 a year, and in addition has made the indemnity agreement before referred to.

There was not, so far as appeared, any computation made by any one on behalf of either party which fixed 2 per cent. of its gross receipts from railway operation as just and equitable compensation to the city for additional expense for which the city was then obligated or would be thereafter by reason of the railway, and the court finds that said 2 per cent. was not at the time the consent was given figured as such equitable consideration, but on the contrary was a tax. The plaintiff would not have approved of the plan submitted by defendant's predecessor without the acceptance of the condition in the Tucker grant requiring defendant and its predecessor to pay a percentage of the receipts from the operation of their railway. The city refused to approve of defendant's petition to operate its lines in Hartford with the Birney one-man car, and thereupon defendant refused to report the gross receipts or pay plaintiff the 2 per cent. under the Tucker grant.

The court reached the following conclusions:

(a) There was no consideration for the payment by the company of the 2 per cent., and it was not fixed by the common council as having any relation to equitable or fair reimbursement for any loss which would ensue to the city from the location maintenance, and operation of...

To continue reading

Request your trial
14 cases
  • City of Tulsa v. Southwestern Bell Telephone Co.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 26 Enero 1935
    ...the privilege of special use of its streets or to grant such under terms and compensations agreeable to it." In City of Hartford v. Connecticut Co., 107 Conn. 312, 140 A. 734, the charter of the company granted by the state authorized the company to construct extensions of its lines of rail......
  • Laclede Power & Light Co. v. City of St. Louis
    • United States
    • Missouri Supreme Court
    • 3 Julio 1944
    ... ... Co., 148 U.S. 92; Plattsburg v. People's Tel ... Co., 88 Mo.App. 306; Lancaster v. Briggs & Melvin, 118 Mo.App. 570; Hartford v. Connecticut ... Co., 140 A. 734, 107 Conn. 312; Mitchell v. Dakota ... Tel. Co., 25 S.D. 409, 127 N.W. 482; Spokane v ... Spokane Gas & ... ...
  • Caulfield v. Noble
    • United States
    • Connecticut Supreme Court
    • 26 Junio 1979
    ...by law upon the individual for a public purpose." Cromwell v. Savage, 85 Conn. 376, 377, 82 A. 972, 973 (1912); Hartford v. Connecticut Co., 107 Conn. 312, 332, 140 A. 734 (1928). It is unquestioned that in this state, taxation may only be imposed for a public purpose and that a cardinal pr......
  • City of St. Louis v. Laclede Power & Light Co.
    • United States
    • Missouri Supreme Court
    • 10 Junio 1941
    ... ... Western Union Tel. Co. v ... Markway, 341 Mo. 976; St. Louis v. Western Union ... Tel. Co., 148 U.S. 92, 37 L.Ed. 380; Hartford v ... Connecticut Co., 140 A. 734, 107 Conn. 312; ... Plattsburg v. Peoples Tel. Co., 88 Mo.App. 306; ... Lancaster v. Briggs & Melvin, 118 ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT