Scudder v. Town of Greenwich

Decision Date16 July 1940
Citation14 A.2d 728,127 Conn. 71
CourtConnecticut Supreme Court
PartiesSCUDDER et al. v. TOWN OF GREENWICH et al.

Appeal from Superior Court, Fairfield County; Patrick B O'Sullivan, Judge.

Action by Alice M. Scudder and others against the Town of Greenwich and others, claiming an injunction restraining defendants from enforcing an order of the selectmen and other relief brought to the superior court and tried to the court. Judgment for plaintiffs, and defendants appeal.

No error.

H Allen Barton, of Greenwich, for appellants.

Charles W. Pettengill and William C. Strong, both of Greenwich, for appellees.

Argued before MALTBIE, C.J., and AVERY, BROWN, JENNINGS, and ELLS, JJ.

JENNINGS, Judge.

The decisive question in this case is the validity of an order issued by the selectmen of Greenwich pursuant to Cum.Supp.1935, § 1385c, printed in the footnote.[1]

The finding is not subject to correction because no evidence is printed. It discloses the following facts essential to the decision: The plaintiffs maintain a noncommercial kennel in the Round Hill district of Greenwich, a high class residential neighborhood. This district has no well-defined boundaries but is about five miles square. The kennel is licensed by the state. Cocker spaniels, a small breed of dogs, are raised there. An average of thirty-five dogs, exclusive of pupies, were kept in the kennel. They were not allowed to run at large. Their barking annoyed the neighbors, especially at night. On September 27, 1937, seven of these neighbors filed a written complaint with the selectmen. Notice was given to the named plaintiff of a hearing which, after several adjournments, was held on November 29, 1937. Most of the complainants appeared, testified and were cross-examined by counsel for the plaintiffs. No attempt was made by anyone at the hearing to identify any certain dog or dogs referred to in the complaint. The plaintiffs offered no evidence, claiming that the selectmen had no jurisdiction under the circumstances. After consultation among themselves and with others, the selectmen, on December 9, 1937, issued the following order: ‘ To Alice B. McCutcheon Scudder

Townsend Scudder.

‘ It is ordered, that on and after February 1, 1938, you shall not harbor or keep on any tract of land owned by you in the Round Hill district of the Town of Greenwich, more than ten dogs of either sex over three months of age.’

On January 20, 1938, the defendants, without notice or hearing, were served with this temporary injunction restraining them from enforcing the order and from interfering with the maintenance of the kennel. None of those who made the complaint to the selectmen were present at the trial of this case in the Superior Court. The trial court concluded that the order was void. Among its reasons were that the power of the selectmen was limited by the statute to orders affecting specific dogs which had created a nuisance and that the order in question was discriminatory in that it denied the right of the plaintiffs to harbor any number of dogs upon the obtaining of an appropriate license, so long as a nuisance was not created thereby.

In maintaining a kennel, the plaintiffs were engaged in activity recognized as legal and proper by the state. General Statutes, Cum.Sup.1935, § 1367c; State v. Tripp, 84 Conn. 640, 645, 81 A. 247. A reading of the statute quoted indicates that it was not directed at this sort of enterprise. Paraphrased, it says that if any dog is a nuisance because of excessive barking, the selectmen may make such order concerning the restraint or disposal of such dog as may be deemed necessary. The conclusion of the trial court that the order, under the statute, must concern a specific dog or dogs is the only reasonable conclusion. Had the legislature intended to reach such a situation as that disclosed here, the statute would have been worded very differently. Nor are the complainants remediless. As is indicated in Woolf v. Chalker, 31 Conn. 121, 130, 81 Am.Dec. 175, if the plaintiffs are maintaining a nuisance, the courts are open to them for redress. 46 C.J. 702.

In view of this conclusion, the only claim of law of the defendants which requires notice is that equity will not enjoin the enforcement of a criminal prosecution under the statute. This is the general rule. Tyler v Hamersley, 44 Conn. 419, 422, 26 Am.Rep. 479; Truax v. Raich, 239 U.S. 33, 37, 36 S.Ct. 7, 60 L.Ed. 131, L.R.A.1916D, 545, Ann.Cas.1917B, 283; 32 C.J. 279 et seq. To the rule there is a well recognized exception where a prosecution is threatened under an unconstitutional statute which will invade property rights or cause irreparable injury. Truax v. Raich, supra; Hygrade Provision Co., Inc., v. Sherman, 266 U.S. 497, 500, 45 S.Ct. 141, 69 L.Ed. 402. See Doncourt v. Danaher, 126 Conn. 678, 13 A.2d 868. The exception has been extended to...

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8 cases
  • Herbert v. Smyth
    • United States
    • Connecticut Supreme Court
    • May 10, 1967
    ...Nuisances, § 32; notes, 11 A.L.R.3d 1399, 79 A.L.R. 1060, 1066, 1067; see Woolf v. Chalker, 31 Conn. 121, 129; Scudder v. Town of Greenwich, 127 Conn. 71, 74, 14 A.2d 728. Connecticut has early held that disturbing noises made by animals on adjoining properties may be a nuisance affording g......
  • Eastern Oil Ref. Co. Inc. v. Court Of Burgesses Of Wallingford
    • United States
    • Connecticut Supreme Court
    • March 2, 1944
    ...13 L.R.A.,N.S., 932, 14 Ann.Cas. 764; Oklahoma Operating Company v. Love, 252 U.S. 331, 40 S.Ct. 338, 64 L.Ed. 596.’ Scudder v. Greenwich, 127 Conn. 71, 14 A.2d 728. There being no error, for the reason already stated, in the court's conclusion that the order was void and of no legal effect......
  • Adams v. Hamilton Carhartt Overall Co.
    • United States
    • Kentucky Court of Appeals
    • March 2, 1943
    ... ... Central ... Allapattae Properties, Inc., 145 Fla. 123, 198 So. 819, ... 823; Scudder v. Town of Greenwich, 127 Conn. 71, 14 ... A.2d 728; Murphy v. Hitchcock, 150 Misc. 36, 268 ... ...
  • Adams v. Hamilton Carhartt Overall Co.
    • United States
    • United States State Supreme Court — District of Kentucky
    • March 2, 1943
    ...chickens, geese and guineas); Knowles v. Central Allapattae Properties, Inc., 145 Fla. 123, 198 So. 819, 823; Scudder v. Town of Greenwich, 127 Conn. 71, 14 A. (2d) 728; Murphy v. Hitchcock, 150 Misc. 36, 268 N.Y.S. 385; and Talbot v. Stiles, When we stop to consider that a nuisance is anyt......
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