Mallory v. Town of Huntington

• Decision Date: 19 February 1894
• Citation: 29 A. 245,64 Conn. 88
• Court: Connecticut Supreme Court
• Parties: MALLORY v. TOWN OF HUNTINGTON.

29 A. 245

64 Conn. 88

MALLORY

v. TOWN OF HUNTINGTON.

Supreme Court of Errors of Connecticut.

Feb. 19, 1894.

Appeal from superior court, Fairfield county; Ralph Wheeler, Judge.

Action by Aaron P. Mallory against the town of Huntington for damages for refusal to perform the award of arbitrators. Demurrer to complaint sustained, and judgment for defendant. Plaintiff appeals. Reversed.

William S. Downs, for appellant. William H. Williams, for appellee.

HAMERSLEY, J. The town of Huntington changed the grade of a public highway situated within the town, and by reason of such change of grade the plaintiff, who was the owner of the land adjoining the highway, sustained special damage to his property. Under the provisions of section 2703 of the General Statutes the town became liable to pay the plaintiff the amount of such special damage. The selectmen of the town and the plaintiff were unable to agree upon the amount of damages due, and submitted to arbitrators the difference between the town and the plaintiff as to such amount. The arbitrators made an award requiring the town to pay the plaintiff $740. The town neglected and refused to comply with the award, and the plaintiff brings this suit against the town upon the arbitration agreement. In the court below the defendant demurred to the complaint. The demurrer was sustained, and judgment rendered for the defendant. From this judgment the plaintiff appeals.

No question is now raised as to the plaintiff's right to recover if the selectmen had legal authority to submit to arbitration the questions of difference between the town and the plaintiff as to the amount of damages. The defendant claims that the selectmen did not have such legal authority, and that his demurrer was, therefore, properly sustained. This claim is based on two propositions, either of which, being sound, is sufficient to support the claim. The first proposition is: Selectmen, by virtue of their general authority to act for their town, are not authorized to settle a claim against the town by means of a submission to arbitration. This proposition rests upon the authority of Griswold v. North Stonington, 5 Conn. 367. The precise question determined in that case was that selectmen, virtute officii, are not empowered to submit to arbitrament a question regarding the settlement of a pauper, which involves the right or liability of the town. The court, however, announced the general proposition that selectmen cannot bind the town by arbitration, and deduced this proposition mainly, if not wholly, from the assumption, which the court treated as settled law, that selectmen cannot, without special authority, act for the town in the prosecution and defense of suits. So that the main ratio decidendi of this case is the necessity of special authority to enable selectmen to prosecute and defend suits in behalf of their town. If the court had held that the law vested in selectmen general authority to prosecute and defend suits, it is not certain that they would have reached the same result on the precise question determined, and it is hardly possible they would have announced the general proposition that selectmen have no authority to bind their town by arbitration. In Union v. Crawford, 19 Conn. 331, this question was again before the court. Upon full argument, and for the express purpose of settling the question, the court held that the selectmen of a town, by virtue of their general powers as selectmen, and without the delegation of any special authority for the purpose, have a right to prosecute and defend suits to which, their town is a party. The practice authorized by this opinion has been followed for nearly 50 years, and the fact that during that period the legislature has not altered the statute conferring general powers upon selectmen, which this case construed, is a strong indication that the construction of the court expressed the real legislative intent. So far, therefore, as Griswold v. North Stonington, and some earlier cases, deny the right of selectmen to prosecute and defend suits without special authority from the town, and so far as those cases deny the authority of selectmen to bind their town by arbitration because they are not authorized to prosecute and defend suits, the cases must be considered as overruled.

The relations of selectmen to their town in prosecuting or defending a suit are quite different from those of an attorney at law to his client. In the case of selectmen, by force of the statute authorizing them to "superintend the concerns of the town, adjust and settle all claims against it, and draw orders on the treasurer for their payment," they represent the town in relation to the whole of the subject-matter. As representatives of the town they are authorized (in the absence of special direction) to decide whether to bring or defend suit, whether to make a settlement before suit or pending suit, and to draw orders on the town treasurer in payment of the claim as settled by them. It would seem clear that under such authority it is within their power to settle the subject-matter committed to their charge by arbitration as well as by an action at law. It is claimed that their authority is a delegated authority in the nature of a personal trust, which they cannot delegate to others. The principle invoked is sound, and should be accurately observed; but it is not pertinent to the case. The authority delegated to selectmen necessarily involves the authority to employ agents, where such employment is a proper, and the ordinary, mode of executing the authority. The authority delegated to such selectmen to keep highways in repair does not require them to do the manual work on the roads, or personally to select the laborers. The employment of agents for such purposes is not the delegation of their authority within the meaning of the law. It is rather the exercise of their authority by proper and legitimate means, and is a very different thing from delegating to another the whole subject-matter of keeping the roads in repair, vesting in him their authority, discretion, and responsibility. So in the matter of litigation, the authority vested as a personal trust in the selectmen is the superintendence and disposition of claims in favor of and against their town, according to their best discretion. That authority they cannot delegate. But the bringing or defending of a suit is one means of executing that authority, and the submission to arbitration is another means. Arbitration is as truly a lawful means of determining controversies as an action at law, and at the request of the parties the law lends to the arbitrators the machinery of the court, so that the award of the arbitrators becomes a judgment enforced by execution. Even when a suit is pending, the court will, upon request of the parties, substitute the arbitrators for judge or jury, and then enforce the award by judgment and execution. It is idle to deny that the law of this state recognizes submission to arbitration, whether by rule of court or not, as a proper and lawful means of settling disputes; and the selectmen, in submitting a case to arbitration, cannot be said to delegate to the arbitrators that authority and discretion which they exercise in a proper and usual manner by the very act of submission. A delegation of the personal trust to use their best discretion in protecting the interests of the town committed to their charge cannot be affirmed in the case of submitting a question to arbitration...