State v. Hartford St. Ry. Co.

• Decision Date: 18 December 1903
• Citation: State v. Hartford St. Ry. Co., 76 Conn. 174, 56 A. 506 (Conn. 1903)
• Court: Connecticut Supreme Court
• Parties: STATE ex rel. HOWARD v. HARTFORD ST. RY. CO.

56 A. 506

76 Conn. 174

STATE ex rel. HOWARD

v. HARTFORD ST. RY. CO.

Supreme Court of Errors of Connecticut.

Dec. 18, 1903.

Appeal from Superior Court, Hartford County; Alberto T. Roraback, Judge.

Mandamus by the state, on the relation of Charles P. Howard, against the Hartford Street Railway Company. From a judgment denying the peremptory writ, the relator appeals. Affirmed.

Edward B. Bennett, for appellant.

Lucius F. Robinson, John T. Robinson, and M. Toscan Bennett, for appellee.

HAMERSLEY, J. The relator claims a right to pursue this writ of mandamus on two distinct grounds: First, by reason of his interest, as a citizen of Hartford, in the enforcement of the legal duty the defendant owes specially to that portion of the public represented by the city of Hartford; second, by reason of his interest as a stranger suffering special damage from the defendant's failure to perform the corporate duty alleged. The defendant, in its return, alleged a former judgment of the superior court denying a peremptory writ to enforce the precise specific duty the relator now seeks to enforce. The return, in connection with the reply, also put in issue certain material facts. Upon the trial below, the defendant claimed that the former judgment constitutes a bar to the relator's right to pursue this writ on the first ground, and that, upon the facts admitted and found by the court, the relator cannot maintain the action upon the second ground. The trial court supported these claims of the defendant, and, if this action is correct, the Judgment denying the peremptory writ must stand.

The history of this case, and the material facts as shown by the record before us, may be briefly stated thus: The defendant was authorized by the Legislature to construct and operate a double-track electric railway through Farmington avenue, in connection with a system of street railways authorized in the city of Hartford. In 1899 the defendant presented to the mayor and common council of the city of Hartford a plan showing the location and mode of constructing and operating the double track railway it was authorized to construct in Farmington avenue. This plan was modified by the addition of certain conditions to be performed by the defendant, and adopted. The statute (Pub. Acts 1893, p. 308, c. 169, §§ 2, 3) forbade the defendant to depart from this plan in constructing its railway, and gave to the city council control over the placing of the tracks in accordance with the plan, and power to order the removal of tracks not so placed, and authorized the enforcement of such order by writ of mandamus. Hartford v. Hartford Street Ry. Co., 73 Conn. 327, 336, 47 Atl. 330. The plan thus adopted prescribed the precise portion of the highway to be occupied by the railroad structure, and provided that this structure should be built with four cross-over switches, so called, connecting the two tracks, so that in case of necessity a car on one track may be transferred to the other track. This mode of constructing a double track railroad is necessary to the most safe operation of the road, and to the most efficient service of public convenience. The place where each cross-over was to be placed was designated by the plan. The defendant constructed its railroad in accordance with the plan, except that one cross-over switch was built 950 feet east of Sigourney street, and in front of No. 116 Farmington avenue, instead of 420 feet east of Sigourney street, as required by the plan. The city council, in accordance with the provisions of the statute, ordered the defendant to remove this switch, and applied for a peremptory writ of mandamus commanding the defendant to obey this order. The mandate prayed for is thus stated in the alternative writ: "It is hereby required and enjoined of you, the said Hartford Street Railway Company, that before the first Tuesday of May, 1900, you remove said crossover located on Farmington avenue, in front of No. 116, as required by the said order of the mayor and court of common council of said city of Hartford, and in all respects to obey said order, and conform to the laws of this state in regard thereto." With the exception of the date of performance, this is the same mandate asked for in the case now before us. The defendant moved to quash the alternative writ, and, upon this motion being granted by the superior court, the city of Hartford appealed to this court.

We held that this difference in constructing the switch was enough to prevent the defendant from claiming a construction in substantial accordance with the plan, as against an order of the council enforcing its power of control; that mandamus would lie, on application of the city, to compel obedience to this order; and that the facts showing the legal duty of the defendant to obey the order were sufficiently alleged—leversed the judgment rendered on the motion to quash, and remanded the cause for further proceedings in the superior court. Hartford v. Hartford Street Ry. Co., 73 Conn. 327, 47 Atl. 330. The defendant then made return, and the case was tried upon issues of fact. The trial court found the issues of fact in favor of the defendant, and further found that, in view of all the facts, a writ of peremptory mandamus, even if legally permissible, ought not to issue, and for this reason dismissed the alternative writ Upon appeal by the city from this judgment, we held that in refusing to issue a peremptory writ the court did not pass the limits of its legal discretion, and that its action was not reviewable. In this connection we said: "The writ of peremptory mandamus is an extraordinary remedy. Like other extraordinary remedies, it can be applied only under exceptional circumstances, and must, to a certain extent, be subject to Judicial discretion. Daly v Dimoek, 55 Conn. 579, 590, 12 Atl. 405; Chesbro v. Babcock, 59 Conn. 213, 217, 22 Atl. 145. It appears from the finding that the duty imposed upon the defendant by law depends upon a construction of the language used in the vote of the court of common council approving the location, which cannot be said to be free from doubt until authoritatively established; that the interest of the city in the removal of the track in question, whether pertaining to it as a private corporation or as representative of public interest (except its vital interest in the prompt obedience of this defendant corporation to its lawful orders), was not substantial. On the contrary, it appeared that the track, in its present position, served, rather than injured, the public interests; that the track was placed by the defendant in pursuance of the direction and approval of the city officials charged by law with the execution of the orders of the council in respect to highways, in the well-grounded belief that, as thus placed, ft complied with the directions of the court of common council. Such conditions do not necessarily exclude discretion. Certainly extreme caution should be used in denying a writ which the court may lawfully issue, but we cannot say that in this case there has been such a plain misconception of sound discretion as would render the judgment erroneous. Some of the other errors assigned invite question. Apparently full effect was not given to the scope of our former decision, but the errors are not material, in view of the ground on which the judgment stands." Hartford v. Hartford Street Ry. Co., 74 Conn. 194, 196, 50 Atl. 393.

The real parties to this former action were the city of Hartford—a territorial municipal corporation acting specially in behalf of that portion of the public composed of its inhabitants—and the present defendant. The cause of action tried and determined involved the right of this portion of the public to a peremptory writ of mandamus compelling the defendant to obey the order of the city council. The court has adjudged that such right does not exist. Whether this conclusion is reached because it has found that no duty of obedience has been violated, or because it has found that such enforcement of a nominal duty would work injustice to the defendant, without benefit to the public, and would therefore be...