Connecticut Co. v. City of New Haven

• Decision Date: 30 July 1925
• Citation: 103 Conn. 197,130 A. 169
• Court: Connecticut Supreme Court
• Parties: CONNECTICUT CO. v. CITY OF NEW HAVEN ET AL.

130 A. 169

103 Conn. 197

CONNECTICUT CO. v. CITY OF NEW HAVEN ET AL.

Supreme Court of Errors of Connecticut.

July 30, 1925

Appeal from Superior Court, New Haven County; Isaac Wolfe, Judge.

Suit by the Connecticut Company to restrain the city of New Haven and others from enforcing an ordinance of the city of New Haven forbidding plaintiff to operate one-man cars on the streets of New Haven, and for a declaratory judgment that such ordinance is void, tried to the court. Judgment for plaintiff and defendants appeal. No error.

Though city of New Haven had power in 1893 to enact police regulation requiring two trainmen on each street car such subject-matter is now within exclusive jurisdiction of Public Utilities Commission.

Argued before WHEELER, C.J., and BEACH, CURTIS, KEELER, and MALTBIE JJ.

George W. Crawford and Thomas R. Robinson, both of New Haven, for appellants.

George D. Watrous and Seth W. Baldwin, both of New Haven, for appellee.

WHEELER, C.J.

The complaint alleges the enactment by the city of New Haven of an ordinance declaring certain designated streets to be arterial and special traffic highways, and providing that no corporation shall operate upon these streets cars carrying passengers between designated hours unless the cars shall have thereon, in addition to the motorman, a conductor or other servant to assist in the care and control of the car and its passengers, and providing a penalty for the violation of the ordinance; the fact that plaintiff operates by one man only, one-man cars, so called, over its lines in these streets; and that defendants intend and threaten to enforce this ordinance and prosecute plaintiff or any who shall operate any street car in violation of its provisions. A further allegation of fact appeared as paragraph 5 of the complaint:

" The enforcement of said so-called ordinance would not only impose a very heavy financial burden upon the plaintiff but seriously interfere with the conduct of its business in public service, and cause irreparable loss, for which it has no adequate remedy at law."

The plaintiff claimed upon these allegations an injunction restraining each of the defendants, and each of their servants and agents, from arresting any person for violation of this ordinance, or attempting in any way to enforce it. All of the allegations of fact were admitted, except paragraph 5 to which defendants specially pleaded, " it is admitted that the enforcement of the ordinance in question will sustantially increase the expenses of the plaintiff in the operation of its trolley cars in the city of New Haven, and that, for the recovery of any loss resulting from said increase in expenses, the plaintiff has no adequate remedy at law," but the remainder of the paragraph was denied.

Plaintiff moved for judgment upon the pleading, and the court, upon hearing had upon the motion, found the issues for the plaintiff, and rendered judgment enjoining defendants from in any manner attempting to enforce, as against the plaintiff or any of its employees, the provisions of this ordinance.

The record is silent as to whether or not the Public Utilities Commission had acted upon the subject-matter of this ordinance--the prohibition of the operation of passenger cars upon the streets of New Haven by one operator. We may therefore assume that action of this character had not been taken by the commission. In this condition of the record two assignments of error include all the questions whose decisions are required by this appeal: (1) That the ordinance is not within the scope of the municipal police powers of the city of New Haven; (2) that the Public Utilities Commission has exclusive power and authority to enact police regulations affecting the use by street cars of the streets of New Haven.

The city of New Haven possesses, under the charter granted it by the state, " not only the powers expressly granted, and those which may be necessarily implied in or incident to these, but also all which are indispensible to the attainment and maintenance of their declared objects and purposes." Cent. Ry. & El. Co.'s Appeal, 67 Conn. 197, 214, 35 A 32, 36. Under our policy, in existence for many years, New Haven, as well as all other municipal corporations of the state, is charged as the agent of the state with the maintenance in a reasonably safe condition of its streets. New York, N.H. & H. R. Co.'s Appeal, 80 Conn. 623, 70 A. 26. Under the Charter of New Haven, § 137f, authority was given the board of aldermen " to make, repair * * * and keep open and safe for public use and travel * * * all streets and highways."

" The general police power of the state resides in the General Assembly." New York, N.H. & H. R. Co. v. Bridgeport Traction Co., 65 Conn. 410, 430, 32 A. 953, 956 (29 L.R.A. 367). It delegated a part of its power to the city of New Haven, in the charter granted. Donnelly v. New Haven, 95 Conn. 647, 654, 111 A. 897. And with the grant was delegated such part of the state's police power as was essential to carry out the purposes of the grant. Since the police power of the state embraced among other things regulations designed to promote the public safety, and the maintenance of the streets of New Haven in a reasonably safe condition was among the duties imposed upon and accepted by it in the charter granted, with this duty necessarily was delegated the power of exercising the state's police power through whatever regulations were necessary to maintain its streets in a reasonably safe condition. In New York, N.H. & H. R. Co.'s Appeal, 80 Conn. 623, 635, 70 A. 26, we trace the history of legislative control over our street railways through the Public Acts of 1893, c. 169, and say:

" Under this section the power of the municipality to modify any proposed plan for the use of its streets extended to the motive power to be used and the method and manner of applying it, and included the power of requiring electric wires to be placed under ground when necessary to protect the ordinary uses of the highway."

Under its general police power and under the sections of its charter, which in part we have quoted, which specifically confer upon New Haven the power of enacting police regulations over the use of its streets by street railways, we think the city of New Haven had the power in 1893 of enacting the police regulation contained in the so-called one-man car ordinance, provided it were reasonable. Continuing our review of the regulations of street railways in New York, N.H. & H. R. Co.'s Appeal, supra, we say:

" The rapid and marvelous increase in the use of street railways, especially in their adaptation to through travel, which followed the legislation of 1893, indicated the necessity of additional legislation directed chiefly to two objects: First, to place street railway companies, as well as steam railroad companies, under the supervision and control of the board of railroad commissioners in respect to their operation and fulfillment of their duties to the public. Second, to make the existing control belonging to municipalities in the use of highways by street railways subject to the ultimate and supreme authority of the railroad commissioners. These objects were sought to be accomplished in ‘ An act concerning the railroad commissioners.’ Public Acts of 1901, p. 1330, c. 156. * * * As the law now stands the control of the use of highways for street railways as it existed prior to 1901 remains undiminished; the municipal authorities are still the agents of the State in the exercise of that control, but jointly with the railroad commissioners, who in some particulars exercise the control through original and exclusive action, and may exercise it in all particulars either through original or appellate and final action. Whatever doubt may arise in some cases whether the municipality can act in the first instance, or in the absence of action by the railroad commissioners, we think it clear that it may so act in a case like the one before us; that is, the local authorities may, in the absence of action by the railroad commissioners exercise the full direction and control given by statute in respect to placing electric wires and conductors in the highways by a street railway company for the purpose of transmitting and applying electricity as the motive power for operating its railway, subject, however, to final action of the railroad commissioners."

It would follow from this construction of the act of 1901 that the railroad commissioners in some instances exercise exclusive control, and in some instances exercise the control jointly with the municipality; the municipality's control in these instances of joint control being subject to that of the railroad commissioners when exercised, and in some instances which affect merely the local condition of the municipality the control of the municipality is exclusive.

The one-man car ordinance is not the regulation of an exclusively local condition. This is plain in the case of a railway operating, as the plaintiff does, over a wide area and through many communities. Whether the power of regulation of the operation of a railway in the manner proposed by this ordinance would have been, after the legislation of 1901, one within the exclusive control of the railroad commissioners or one within the joint control of the commissioners and the municipality, we are not required to now determine. If it be the first, the ordinance would be void; if the latter, the ordinance would be good, since the reasonableness of the ordinance is not attacked in this proceeding, and the municipalty has exercised its control within its police power and prior to the exercise by the railroad commissioners of a like power. In Cullen v. New York, N.H. & H. R. Co. et al. 66...