Fair Haven & W. R. Co. v. City of New Haven

• Decision Date: 20 January 1903
• Citation: 75 Conn. 44,53 A. 960
• Court: Connecticut Supreme Court
• Parties: FAIR HAVEN & W. R. CO. v. CITY OF NEW HAVEN.

53 A. 960

75 Conn. 44

FAIR HAVEN & W. R. CO.

v. CITY OF NEW HAVEN.

Supreme Court of Errors of Connecticut.

Jan. 20, 1903.

Appeal from superior court, New Haven county; Milton A. Shumway, Judge.

Statutory application by the Fair Haven & Westville Railroad Company for relief from an assessment made by the common council of the city of New Haven against plaintiff on account of the construction of a pavement in a street. There was a judgment reducing the assessment, and defendant, the city, appeals. Reversed.

Leonard M. Daggett and E. P. Arvine, for appellant.

George D. Watrous, Harry G. Day, and Talcott H. Russell, for appellee.

PRENTICE, J. The plaintiff operates a double-track electric street railway through West Chapel street, in the defendant city, and did so at the time of the improvement in question. In October, 1895, the court of common council ordered said street to be paved for a considerable distance with sheet asphalt. The work of construction began in June and ended in October or November, 1897. This pavement replaced crushed stone and Belgian block pavements which had been laid in portions of the street in the years 1873 and 1874, and for which the plaintiff had been assessed. The work was done under a contract between the city and the contractor at a certain price per square yard, and the city paid therefor. The city thereupon assessed against the plaintiff the sum of $36,879 on account of said improvement and expenditure. This sum purported to represent the actual cost to the city of laying so much of said pavement as was embraced within the space covered by the plaintiff's tracks and two feet on each side without. The trial court rejected the rule employed by the city in arriving at the plaintiff's share of the burden of the improvement, which was one claimed by virtue of the provisions of Sp. Acts 1895, p. 565, and adopted a radically different and much less favorable rule, derived from Sp. Acts 1899, p. 181, which imposed an assessment of only $5,823. This rule arrived at its result by treating each side of the plaintiff's tracks as frontage, and assessing it at the rate of 60 cents per lineal foot. The real question between the parties is as to the correctness of the defendant's claim as to the rule to be applied.

As the question involved is primarily one of statutory construction, we can best approach it by an examination of the statutory situation. When the work was ordered and constructed, chapter 169 of the Public Acts of 1893 and the special act of 1895 (p. 565) were both in force. The former act provided that it should "be the duty of every street railway company to keep so much of the street or highway as is included within its tracks and a space of two feet on the outer side of the outer rails thereof in repair to the satisfaction of the authorities of the city, town or borough which is bound by law to maintain such street or highway." The act further provided that upon notice, and failure to comply, the municipal authorities might do the work, and recover the expense from the company. The latter act authorized the defendant to issue its bonds to an amount not exceeding $500,000, the avails of which should be used in paving construction only, and provided that all pavements laid by authority of the act should be laid upon the credit of the city, and under its direction and control. It further provided that the city might assess a portion of the cost upon abutting landowners, and another portion upon street railway companies. The latter provision was in the following language: "On all streets occupied by the track or tracks of any railway company or companies, said company or companies shall be assessed and shall severally pay to the city the cost of paving and repaying the full length and nine feet wide for each and every line of track of such railway now existing or that may hereafter be laid in any street of said city." The act then proceeded as follows: "All such assessments on the hereinbefore described abutting landowners and railway companies shall be payable at such time or times as may be determined by the court of common council." After the pavement in question was laid, and pending proceedings to assess in the manner provided in the act of 1895, another act, found in Sp. Acts 1899, p. 181, was passed and went into effect. The first section of this act provided that the city of New Haven should lay a tax of one mill on the dollar for the paving of streets, and that the receipts therefrom, and from all other assessments resulting from the construction of street pavements, should be expended for the original construction of pavements. The second section provided that "benefits and damages" should be laid and assessed for or against all owners of property abutting upon or adjoining the streets in which the pavement was laid, which assessment of benefits should not exceed a certain amount per lineal foot of frontage, varying according to the character of the pavement, and being GO cents per foot for asphalt The fourth section provided that all the pavements should be laid upon the credit of the city and under its direction, and that the assessments should be collectible and payable, and liens laid to secure them, in the same manner and at the same time as the city taxes. The fifth section provided for a right of appeal from assessments; the sixth, that the act should be regarded as an amendment to the city charter, and that all inconsistent acts should be repealed; the seventh, that nothing in the act should prevent the city from issuing bonds for street pavement in accordance with the act of 1895; and the eighth, that the act should not affect the liability of street railway companies under the general laws. The third section was as follows: "An assessment of benefits and damages to be laid for the pavements already constructed and laid in the city of New Haven upon * * * and West Chapel streets shall be laid in accordance with and under the provisions of this act and the property shall be assessed in accordance therewith irrespective as to whether or not brick gutters have been laid on side streets."

One of the controlling questions in this case is as to the effect of the act of 1869 upon the provisions of that of 1895. The plaintiff contends that the latter act repealed the former; the defendant, that it did not. This difference of view explains the situation disclosed by the case. The city bases its claim to the larger sum assessed by it upon the rule of recovery laid down in the act of 1895. The railway company claims to limit its liability, at least to the smaller sum assessed by the court, upon the strength of the rule of assessment prescribed in the act of 1809, as interpreted by the court and accepted by the company.

It will be noted that the act of 1899 contains no negative words, and no express repeal of the former act. The only repeal expressed is one of inconsistent acts and parts of acts. Such a repeal would have arisen by implication. City of Hartford v. Hartford Theological Seminary, 66 Conn. 475, 34 Atl. 483; Braman v. City of New London, 74 Conn. 695, 51 Atl. 1082. The rule of repeal by implication extends still farther. Wherever a later statute is repugnant in its provisions to those of a prior one, there is a repeal to the extent of the repugnancy; and wherever a later statute is exclusive (that is, when it covers the whole subject to which it relates) the former is repealed. City of Hartford v. Hartford Theological Seminary, supra; U. S. v. Claflin, 97 U. S. 546, 24 L. Ed. 1682, 1085. Even where the two acts are not in express terms repugnant yet if the later one covers the whole subject of the former, and embraces new provisions, plainly showing that it was intended as a substitute for the former, it will operate as a repeal of the former. U. S. v. Tynen, 11 Wall. 88, 20 L. Ed. 153.

By the side of these principles stand others which are of importance when repeals by implication are claimed. Such repeals are not favored, and will not be extended beyond the reason therefor, nor presumed where the old and the new may stand together. Bank v. Himes, 55 Conn. 433, 12 Atl. 517; Bissell v. Dickerson, 64 Conn. 61, 29 Atl. 226; Kallahan v. Osborne, 37 Conn. 488; Appeal of Central Ry. & Electric Co., 67 Conn. 197, 35 Atl. 32. If both the earlier and the later statute can be reconciled, they must stand and have concurrent operation. Goodman v. Jewett, 24 Conn. 588; Kallahan v. Osborne, 37 Conn. 488; Talcott v. Town of Glastonbury, 64 Conn. 575, 30 Atl. 764. The repugnancy between the two statutes must be clear and manifest, to warrant a court in holding that the later repeals the former. Hartford Bridge Co. v. Town of East Hartford, 16 Conn. 149; City of Middletown v. Railroad Co., 62 Conn. 492, 27 Atl. 119. A statute is not repealed by a later affirmative one containing no repealing clause, unless there is irreconcilable conflict or the later statute is clearly intended as a substitute for the earlier. Red Rock v. Henry, 106 U. S. 596, 1 Sup. Ct. 434, 27 L. Ed. 251; In re Henderson's Tobacco, 11 Wall. 652, 20 L. Ed. 235. Repeals by implication extend to only so much of the prior statute as is within the reason of the repeal. They are never extended further than the inconsistency compels. New Haven and Fairfield Cos. v. Town of Milford, 64 Conn. 568, 30 Atl. 768. This rule applies where there is an express repeal of inconsistent acts. People v. Durick, 20 Cal. 94. A statute expressly repealing Inconsistent acts will not be held to affect pending cases unless the intention to do so is apparent. In re Uwchlan Tp. Boad, 30 Pa. 156; In re Hickory Tree Road, 43 Pa. 139. It might be added, apropos of the facts in this case, that a repeal will not be implied, without plain evidence of intention, where the repeal would tend to deprive parties of rights, relying upon the faith of which they have acted to their injury in case of repeal.

The act of 1899 contains...