Mooney v. Clark

• Decision Date: 25 May 1897
• Citation: 37 A. 506,69 Conn. 241
• Court: Connecticut Supreme Court
• Parties: MOONEY v. CLARK, Mayor, et al.

37 A. 506

69 Conn. 241

MOONEY

v. CLARK, Mayor, et al.¹

Supreme Court of Errors of Connecticut.

May 25, 1897.

Appeal from superior court, Fairfield county; Samuel O. Prentice, Judge.

Suit by Frank J. Mooney against Frank E. Clark, mayor, and others, aldermen, of the city of Bridgeport, to restrain them from confirming a contract entered into by the agents of the city concerning the elimination of grade crossings. There was a judgment for defendants on demurrer sustained to the complaint, and plaintiff appeals. No error.

Robert E. De Forest and Jacob B. Klein, for appellant.

Daniel Davenport and George P. Carroll, for appellees.

ANDREWS, C. J. The plaintiff in the complaint prayed for an injunction to restrain the city authorities of Bridgeport from taking certain action which he alleged they were about to take, and which would subject the taxpayers of that city to heavy illegal taxes. The superior court refused the injunction and dismissed the complaint. From that judgment the plaintiff has appealed to this court. If it were true that the consequences of the action complained of would follow as asserted by the plaintiff, then his complaint was not prematurely brought. "Obsta principiis" is an exceedingly good maxim to act upon in cases where illegal taxation is threatened. But we think the consequences feared by the plaintiff will not follow, and that there is no error in the judgment of the superior court. To make this view entirely plain, we must examine the case with some care, both as to the action itself and its legal effect.

The defendants are the common council of Bridgeport. On the 20th day of April, 1896, Frank E. Clark, William E. Seeley, and Frederick S. Stevens, who were appointed, by a resolution of the general assembly enacted in 1895, agents on behalf of that city to enter into an agreement with the New York, New Haven & Hartford Railroad Company, reported to the common council of that city that they had, pursuant to that resolution, made an agreement with the said railroad company in respect to the matters mentioned in the said resolution, and submitted the same, which is:

"Whereas, the general assembly of the state of Connecticut at its last session passed a resolution which was approved June 22, 1895, and which provides that, in order that the safety of the public may be insured, all crossings at grade over the main tracks of the railroad of the New York, New Haven & Hartford Railroad Company, in the city of Bridgeport, shall be abolished, and also that said city and said railroad company may within six months after the passage of said resolution agree upon the manner, plans, method, and time in which said crossings at grade shall be abolished, and upon all other matters mentioned in section 6 of said resolution, and what amount, or what proportion, or what Items of the cost thereof shall be paid by the city of Bridgeport, and, for the purpose of making said agreement, empowers the mayor of said city of Bridgeport and William E. Seeley and Frederick S. Stevens to act for said city: Now, therefore, in accordance with the provisions of said resolution of the general assembly, and subject to the approval of the board of railroad commissioners, the said city of Bridgeport, acting herein by its agents, Hon. Frank E. Clark, its mayor, and the said William E. Seeley and Frederick S. Stevens, thereunto duly authorized by said resolutions, and said New York, New Haven & Hartford Railroad Company, acting herein by John M. Hall, its vice president, hereunto duly authorized, do hereby agree as follows:

"(1) For the purpose of abolishing the crossings aforesaid, the location, grade, and plan of said railroad through said city, and the number of its tracks, shall be substantially as shown upon the plans marked, 'Plans for the Abolition of Grade Crossings on the Main Line, New York, New Haven & Hartford Railroad Company, City of Bridgeport, of Conn.' (said plan being signed by the respective agents of the parties hereto), and the work of excavation, construction, alteration, and grading of said tracks, streets, approaches, bridges, and abutments according to said plans shall be done by said railroad company, both upon its own land, and upon the highways affected by said plans, except as hereinafter specifically otherwise provided. The grades of the railroad tracks and of the highways shall be as shown upon said plans. The stone abutments of all bridges shall be of equal workmanship of the abutments of the existing bridge across Fairfield avenue (west), unless modified by the railroad commissioners. Said railroad company, during the progress of said work, shall have the free use of such streets or portions of streets, and the right to temporarily close such streets, as may be necessary for the convenient prosecution of the work. Crescent avenue and Railroad street are hereby extended from their present easterly termini to the westerly line of the proposed freight station yard of said railroad company east of Central avenue, and East Washington avenue shall be extended and constructed by said city to Seaview avenue, provided said railroad company elects to lay a siding on the north side of its main tracks as hereinafter provided; and so much of South Railroad avenue between Broad and Main streets as is occupied by the structure of said railroad company, as shown on said plan, is hereby discontinued as a highway, and Clark, Wilmot, and North and South Railroad avenues, west of Fairfield avenue (west), and all streets and private ways, whether existing or projected upon or across the property of said railroad company along its main-line tracks, not shown upon said plans, are hereby discontinued, except the private ways between a point opposite the east end of Union street and Fairfield avenue (east). South Railroad avenue is hereby extended from Wordin avenue to Howard avenue, forty feet wide. Said railroad company shall lay and maintain a track at grade upon the south side of South Railroad avenue, from Fairfield avenue eastward to the westerly line of South avenue, free from all burdens or assessments of any kind, so long as said railroad company maintains the same; said track to be connected by proper switches with such side or spur tracks as now exist, or as may hereafter be granted or permitted by said city. Said railroad company shall bridge, as shown upon the plans, the following named streets: Bostwick avenue, Hancock avenue, Howard avenue, Wordin avenue, Iranistan avenue, Park avenue, South avenue, Myrtle avenue, Warren street, Lafayette street, Broad street, Main street, Wall street, Fairfield avenue, Sterling street, Noble avenue, Clarence street, Kossuth street, East Main street, Pembroke street, Hallett street, Seaview avenue, Central avenue, and Bishop avenue,— with the head room in each case of not less than twelve feet in the clear between the crown of the street and the bottom of the girder, unless otherwise shown on the plans. The location of the pipes, wires, poles, or tracks of any water, gas, telephone, or electric light, telegraph, or power company, or street-railway company, and all public or private sewers or drain pipes, shall be changed, at the expense of said several companies, whenever in any manner they interfere with the prosecution of said work, or the construction or maintenance of the same according to said plans, in such manner or in such time as the board of railroad commissioners shall order. For the accommodation of manufacturing and other shippers in East Bridgeport, said railroad company shall construct a fifth track, leading from its proposed freight station in Bast Bridgeport, or from some point between said freight station and Seaview avenue, to the easterly line of Hallett street; and the same may be placed either on the north or south side of the main tracks, but shall cross Seaview avenue on a level with said main tracks. Such fifth track shall be considered as a part of the work herein provided for, and shall be included in the cost thereof; and said railroad company shall have the right to use such portion of any street or streets immediately adjoining the railroad location as may be necessary for the location and maintenance of such fifth track, and said company shall be free from all burden and assessments on account of said fifth track so long as it shall maintain the same.

"(2) it is understood and agreed that the work herein provided for shall commence on or before the first day of April, 1896, and proceed as rapidly as possible until finished.

"(3) in consideration whereof, said city hereby agrees to pay to said railroad company one-sixth of the entire cost of constructing a four-track railroad from Fairfield avenue (west) to Bruce's brook, as by the alignment and grade shown on the plans above named, including the work done on the highway as per said plans, and including ail bridges ready for ties, all damages to property resulting from a change of grade of streets, or the discontinuance of the same of parts thereof, and the cost and damages to all lands which have been or may be acquired by said railroad company for the purpose of said four-track construction, together with a reasonable allowance for the services and expenses to the date hereof of Frank E. Clark, William E. Seeley, and Frederick S. Stevens, the persons appointed by said resolution to act for said city, and for such services as is imposed upon them by the provisions of this agreement: provided, that the total cost to be paid by said city shall not exceed in the aggregate the sum of $400,000. Said railroad company shall keep a detailed account of the cost of said construction, excluding therefrom the cost of the passenger station and ground and approaches thereto not required for said four-track construction, and all switches and side tracks, and all other items properly belonging to the superstructure of said railroad. In case any question shall arise between said city and...