Norwalk & S. Norwalk Elec. Light Co. v. Common Council of City of S. Norwalk

• Decision Date: 04 January 1899
• Citation: 71 Conn. 381,42 A. 82
• Court: Connecticut Supreme Court
• Parties: NORWALK & SOUTH NORWALK ELECTRIC LIGHT CO. v. COMMON COUNCIL OF CITY OF SOUTH NORWALK.

42 A. 82

71 Conn. 381

NORWALK & SOUTH NORWALK ELECTRIC LIGHT CO.

v. COMMON COUNCIL OF CITY OF SOUTH NORWALK.

Supreme Court of Errors of Connecticut.

Jan. 4, 1899.

Appeal from superior court, Fairfield county.

Application for alternative mandamus by the Norwalk & South Norwalk Electric Light Company against the common council of the city of South Norwalk.There was a judgment for plaintiff, and respondent appeals.Affirmed.

The alternative writ was as follows:

"Superior Court, Fairfield County.November 5, 1897.To Stephen S. Hatch, George S. Kendall, George S. Trowbridge, Venancio A. Scofield, Charles N. Smith, and William W. Comstock, councilmen of the city of South Norwalk, and Charles G. Bohannan, mayor of said city of South Norwalk, the common council of the city of South Norwalk: Whereas, it has been, made to appear: (1) That the city of South Norwalk is a municipal corporation in the town of Norwalk, incorporated as a city, under a charter granted by the legislature of this state, and that under said charter 'the council' is the common council of said city, and that the following named persons, to wit, Stephen S. Hatch, George S. Kendall, George S. Trowbridge, Venancio A. Scofield, Charles N. Smith, and William W. Comstock, now are the councilmen, and Charles G. Bohannan is the mayor, of said city, and has a right to preside and to vote, in case of a tie, at the meetings of the said board of council, and that Joseph R. Taylor is now clerk of said board.(2) That the Norwalk & South Norwalk Electric Light Company is a corporation organized and existing under and by virtue of the laws of the state of Connecticut, is located in said town of Norwalk, and is exercising the powers conferred upon it by charter granted by the general assembly of this state, beginning Wednesday after the first Monday of January, A.D. 1887, duly approved by the governor of said state, April 20, 1887, and duly accepted by the said company in 1887.(3) That by said charter the Norwalk & South Norwalk Electric Light Company is authorized and empowered to generate, manufacture, and sell electricity for the purposes of light and power, and for any other purposes within the town of Norwalk and the city of South Norwalk in said town, and may light any public or private buildings or grounds, streets, avenues, lanes, parks, alleys, and squares within said territory by means of electricity conducted by wires over or under the surface of the ground, and through, over, along, and across the streets and public grounds of said town and city; and that said corporation is authorized to erect and construct such wires, poles, posts, fixtures, and other works or structures, suspend wires, lay conduits for electric wires under the ground, and to change and alter the same as occasion may require; to maintain all electrical apparatus necessary and convenient to carry on the business of said corporation, and to have power to do all things necessary to the proper management of said business.(4) That pursuant to said authority the Norwalk & South Norwalk Electric Light Company has erected, constructed, and now maintains at a great expense a plant in said town of Norwalk to generate and manufacture electricity, and has erected and constructed poles, posts, fixtures, other works, structures, and apparatus, and suspended and laid wires to conduct and deliver electricity for light, power, and any other purposes throughout portions of the town of Norwalk and the said city of South Norwalk, and has been since its organization and equipment, and still is, engaged in the manufacture, sale, and delivery of electricity for the purposes of light, power, and other purposes to a large number of the people in the city of South Norwalk desiring the same, through and by means of said wires, poles, posts, fixtures, works, structures, and apparatus.(5) That a part of said wires, poles, posts, fixtures, structures, and apparatus are situated on Washington street and on Main street, and on Railroad place, in the city of South Norwalk, and that the same are public streets and places in the said city.(6) That by reason of the use and wear of said wires, poles, posts, fixtures, structures, and apparatus so used, and the increased use of electricity for said purposes, and the numerous improvements in the means and methods of economical distribution and delivery of electricity, and the proper exercise of the powers granted by said charter, it became and is necessary that said corporation should repair, improve, renew, change, and alter the said system of wires, fixtures, structures, and apparatus at various places within said city, to wit, certain wires, fixtures, structures, and apparatus located upon Washington street, Main street, and Railroad place, in said city, as asked for in the application hereinafter referred to.(7) That on the 1st day of February, 1897, said corporation duly submitted to the said council of said city of South Norwalk a statement of such changes and alterations as it desired to make in said Washington street, Main street, and Railroad place, and asked for an order relative to its direction and control of such work and materials as provided by law, and according to the General Statutes of the state, which application was as follows: 'To the City Council of the City of South Norwalk: The application of the Norwalk & South Norwalk Electric Light Company respectfully represents that by its charter it has a right to maintain wires, fixtures, poles, and other apparatus in Washington street, Main street, and Railroad place, in the city of South Norwalk; that it has now upon said streets its wires, conductors, fixtures, poles, and other apparatus for the purposes of conveying and distributing electricity for the purpose of lighting; that it desires to repair and improve its present wires, conductors, and transformers on said streets, made necessary by the condition of the present wires, conductors, and transformers, for the purpose of furnishing lights to its customers; said repairs to consist of taking out a large number of transformers, and putting in their place four large transformers of three hundred lights capacity each, and three No. 0 wires, all to be attached to the present poles of the company.They therefore pray for such an order as your council shall see fit, relative to such direction and control over said work as is contemplated and provided by section 3946 of the General Statutes of this state.Dated at Norwalk, this 1st day of February, A.D. 1897.Respectfully [Signed] Norwalk & So. Norwalk Elec. Light Co., by W. E. Guthrie, Supt.'(8) That said corporation has repeatedly requested said common council to act upon said application.(9) That said common council has duly met and transacted business once each month since said February 1, 1897, and at all times has refused, and still refuses, to act upon said application.(10) That the said city, and the officers and authorities of said city, have forbidden and prevented said corporation to make and from making any of said necessary changes, alterations, or repairs, to wit, the taking out of a large number of transformers, and putting in their place four large transformers of three hundred lights capacity each, and three No. 0 wires, to be attached to the present poles of the company; and that it was at the date of said application, and still is, necessary that said council should exercise the powers conferred by law on said body relative to the direction and control over the placing, erection, and maintenance of any such wires, conductors, fixtures, construction, or apparatus, including the relocating or removal of the same, and including the power of designating the kind, quality, and finish thereof.(11) That by reason of said refusal and neglect of the said common council of the city of South Norwalk the Norwalk & South Norwalk Electric Light Company is occasioned and put to great loss and damage, and is prevented from fully discharging its charter, and from doing the necessary acts and things referred to in said application.(12) That this applicant has no other remedy at law: Therefore, that due and speedy justice may be done in the behalf of said the Norwalk & South Norwalk Electric Light Company, it is required and enjoined of you, the said Stephen S. Hatch, George S. Kendall, George S. Trowbridge, Venancio A. Scofield, Charles N. Smith, and William W. Comstock, councilmen of the city of South Norwalk, and Charles G. Bohannan, mayor of the city of South Norwalk, the common council of the city of South Norwalk, that on or before the 15th day of November, 1897, you take action on and make some order on the application of the Norwalk & South Norwalk Electric Light Company, presented to your board on the 1st day of February, 1897, or signify cause of the delay thereof to this court, to be held at Bridgeport, within and for the county of Fairfield, at ten o'clock in the forenoon on the 16th day of November, A.D. 1897."

The motion to quash stated the following grounds: "(1)Section 3945, Gen. St., provides, that the relator shall not exercise any powers which may...