Donnelly v. City of New Haven
| Decision Date | 06 January 1921 |
| Citation | 111 A. 897,95 Conn. 647 |
| Court | Connecticut Supreme Court |
| Parties | DONNELLY v. CITY OF NEW HAVEN. |
Appeal from Superior Court, New Haven County; Donald T. Warner and Gardiner Greene, Judge.
Application by Thomas J. Donnelly, opposed by the City of New Haven, to set aside and annul an assessment of expenses for the construction of a sewer in New Haven, brought to the superior court, and tried to the court upon a demurrer to an amended complaint, Greene, Judge. Demurrer sustained and judgment rendered, Greene, Judge, for the defendant adjudging that the complaint as amended was insufficient, from which judgment the plaintiff appealed. No error.
On May 4, 1908, the board of aldermen of the city of New Haven pursuant to the report and recommendation of the committee on sewers and sanitation, to whom had been referred a petition therefor, passed an order in the following form:
" Ordered, that the director of public works cause a sewer to be constructed in Middletown Avenue between Atwater Street and the Quinnipiac River of the proper size and materials with all necessary manholes, culverts basins, etc."
On August 4, 1913, the board of aldermen, pursuant to the report and recommendation of the same committee, passed another order identical in form except that it ordered a sewer to be constructed in Middletown avenue between Atwater street and Ferry street. These two orders provided for a continuous sewer from Ferry street to the river. Thereafter the director of public works, professing to proceed under and pursuant to these orders, surveyed and laid out and caused to be constructed a sewer on Middletown avenue between the points designated in the orders. Subsequently the bureau of compensation made report to the department of public works of the assessment and apportionment of the cost of the sewer so made, and this department in turn transmitted this report to the board of alderman, and this board accepted the report and ordered payment pursuant to the assessment. Under this assessment the applicant was ordered to pay four several sums, to wit, $981.75, $87.50, $160.13, and $140, as assessed upon different lots fronting upon the sewer which had been so constructed.
The board of aldermen took no action with reference to said sewer except ordering its construction and adopting the report on assessments and ordering their payment. It is alleged that this sewer was never included in any general plan of sewers for the city of New Haven adopted by the board of aldermen or any other authority, that no other proceedings were ever had by the board with reference to this sewer, and that the board of aldermen delegated to said director of public works the power to determine the proper size and materials of said sewer, and what manholes, culverts, basins etc., were necessary thereto, and that said director did determine and decide and said board of aldermen did not determine and decide the proper size and materials of said sewer and what man holes, culverts, basins, etc., were necessary thereto. The petitioner, under the provisions of the charter, made application to the superior court for the annulment and vacation of the order of assessment. To this application the city of New Haven demurred for a number of reasons, among which were these:
(1) It does not allege that said sewer was not ordered and laid out in conformity with the requirements of the charter of New Haven.
(2) It appears that said sewer was ordered and laid out in conformity with the requirements of the charter of the city of New Haven.
(3) It appears that said sewer was ordered and laid out by a proper vote of the board of aldermen of said city.
(4) It does not allege that the charter of said city required the board of aldermen to determine the proper size and materials of said sewer, or what manholes, culverts, and basins, and so forth, were necessary thereto.
(5) It appears that the charter of said city did not require the board of aldermen to determine the proper size and material of said sewer, or what manholes, culverts, and basins, and so forth, were necessary thereto.
(6) It does not allege that said board of aldermen delegated to said director of public works any of the powers vested by law in said board of aldermen.
(7) It appears that said board of aldermen did not delegate to said director of public works any of the powers vested by law in said board of aldermen.
By section 137 the board of aldermen is given the power to enact ordinances of the city of New Haven, among other things, subsection (d):
" To provide for the laying out, grading, discontinuing, altering, paving, opening, improving, lighting, and making repairs of highways, streets, walks, squares, parks, public buildings, drains, sewers, gutters."
The charter also provides, section 73, for a department of public works under the charge of one director; and in section 74 the charter provides:
Harrison Hewitt and Charles E. Clark, both of New Haven, for appellant.
William L. Bennett, of New Haven, for appellee.
It appears from the complaint that the only action taken by the board of aldermen with reference to the construction of the two connecting sections of the Middletown avenue sewer was in and by two orders identical in form except for the designation of the termini of each section, and reading:
" Ordered, that the director of public works cause a sewer to be constructed in Middletown avenue between (naming the termini) of the proper size and materials with all necessary manholes, culverts, basins, etc."
The plaintiff claims that this order constituted an invalid delegation of power to the director of public works, and that the laying of the sewer by the director under this order was not legally authorized, and that the assessment of benefits was by consequence illegal and an attempt to take money without due process and should be annulled; and both parties agree that the fundamental question in this case is whether or not the order for the laying of these sewers was so inadequate as to involve a delegation of power with reference to the construction of this sewer of such matters as were properly legislative in character and should under the proper construction of the charter have been performed by the board of aldermen itself and not by the director of public works.
In Bradley v. New Haven, 91 Conn. 100, 98 A. 977, an order for a sewer, similar in form to that which is the subject of this case, was brought before this court, where it was sought to raise the same question of the unlawful delegation of power to the director of public works. It was there held, however, that in view of the assumption that the city may have adopted a comprehensive scheme of sewerage, the details of which covered the case, and the further assumption that from the case of Bassett v. New Haven, 76 Conn. 70, 55 A. 579, the court was entitled to take judicial notice that a general sewer system for New Haven was adopted and followed, the complaint did not allege a delegation of power. The pleadings in the present case are so drawn as to negative any assumption of such a sewer system as applied to Middletown avenue, and we are therefore compelled to decide the question whether, upon the pleadings, an unlawful delegation of power is sufficiently alleged. This decision depends, not alone upon the specific allegations of fact contained in the complaint, but upon such allegations of fact with reference to the order for this sewer as interpretated in the light of the charter.
The principle appears to be everywhere recognized that the " public powers or trusts devolved by law or charter upon the council or governing body (of a municipality) to be exercised by it when and in such manner as it shall judge best cannot be delegated to others." Dillon, Municipal Corporations, § 244; 29 Cyc. pp. 276, 277; 19 R. C. L. p. 896; and numerous cases there cited. In Cooley on Constitutional Limitations (7th Ed.) p. 293, the rule is thus expressed:
" So far as these functions are legislative, they rest on the discretion and judgment of the municipal body intrusted with them, and that body cannot refer the exercise of the power to the discretion and judgment of its...
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