State v. Muolo

CourtSupreme Court of Connecticut
Citation176 A. 401
PartiesSTATE v. MUOLO.
Decision Date03 January 1935
176 A. 401


Supreme Court of Errors of Connecticut.

Jan. 3, 1935.

176 A. 402

Error from City Court of New Haven; Joseph Weiner, Judge.

Information against Rocco Muolo charging the accused with unlawfully using a taxi stand, brought to the city court of New Haven, criminal side, where the accused filed a demurrer to the information, which was sustained and the information dismissed, and the State brings error.

Error and cause remanded.

See, also, 118 Conn. 373, 172 A. 875.

Argued before MALTBIE, C. J., and HAINES, HINMAN, BANKS, and AVERY, JJ.

Philip R. Pastore, Asst. City Atty., of New Haven, for plaintiff in error.

Franklin Coeller and Louis Phillip Hurley, Jr., both of New Haven, for defendant in error.

Joseph Koletsky and Kenneth Wynne, both of New Haven, amlci curiæ.

MALTBIE, Chief Justice.

The assistant city attorney of the city of New Haven filed an information in the city court against the defendant charging that, on September 8, 1933, being an operator of a taxicab owned by the Terminal Taxi Company, he used a certain taxi stand established on the easterly side of College street in that city, in connection with the Hotel Taft, by the board of police commissioners of the city acting as traffic authority and traffic commission of the city, with the approval of the owner of the hotel, the use of the stand

176 A. 403

being limited to taxicabs operated by the New England Taxi Cab Company, Incorporated, and the New Haven Yellow Cab Company, such cabs having been designated by the owner of the hotel. The defendant demurred to the information as insufficient in law, and the trial court sustained the demurrer. The taxi stand was established under the provisions of section 56b of the General Statutes, Cum. Supp. 1933, which provides: "Taxi Stands in Front of Hotels. The traffic commission of any city or town is authorized to establish a public taxi stand in connection with any hotel within the limits of such city or town and may, with the approval of the owner or lessee of such hotel, limit the use of such public taxi stand to cabs of a company to be designated by such owner or lessee." The demurrer was sustained upon the ground that the portion of the statute authorizing a traffic commission, with the approval of the owner or lessee of the hotel in connection with which the stand was established, to limit its use to cabs to be designated by the owner or lessee, was unconstitutional and void. The only error assigned in the writ attacks the correctness of this conclusion, and, while the briefs of counsel discuss other questions, we shall not consider them. Practice Book 1934, p. 115, § 389.

It is incumbent upon any court, in the consideration of an attack upon the constitutionality of a legislative act, to approach the question with great caution, examine it with infinite care, make every presumption and intendment in its favor, and sustain the act, unless its invalidity is clear. Beach v. Bradstreet, 85 Conn. 344, 349, 82 A. 1030, Ann. Cas. 1913B, 946; State ex rel. Brush v. Sixth Taxing District, 104 Conn. 192, 205, 132 A. 561. In the absence of constitutional or statutory prohibition, any court has power to pass on the constitutionality of a statute, and it may be its duty to declare it invalid, but a proper regard for the great co-ordinate branch of our government, the legislative, and for the preservation of the respect of our citizens, who are apt to look askance upon a decision of a court so limited in its jurisdiction as the city court of New Haven holding invalid the considered legislative judgment, dictates that such a court should take such action only upon the clearest ground or where the rights of litigants make it imperative that it should do so. Otherwise it is better for such a court to leave the decision to our higher courts, to which the matter may be brought by appeal or otherwise. 12 Corpus Juris, 799; Ortman v. Greenman, 4 Mich. 291, 294.

Under the law of this state, the owner of land abutting upon a highway is presumed, in the absence of evidence to the contrary, to own the fee of the land to the center of the highway; the highway is but an easement for public travel and such uses as are incident thereto; the abutter retains all rights in the land not incompatible with the public easement; any person making a use of it beyond the scope of that easement commits a wrong against the owner of the fee, unless, indeed, he acts under legislative authority either in the furtherance of a public use and with compensation made or under a proper exercise by the state of its police power; and for one otherwise to maintain a place of private business in the highway in front of another's property is to commit a wrong against the owner of the fee. Peck v. Smith, 1 Conn. 103, 6 Am. Dec. 216; Read v. Leeds, 19 Conn. 182, 187; Imlay v. Union Branch R. R., 26 Conn. 249, 68 Am. Dec. 392; Woodruff v. Neal, 28 Conn. 165, 167; Canastota Knife Co. v. Newington Tramway Co., 69 Conn. 146, 36 A. 1107; Cadwell v. Connecticut Co., 85 Conn. 401, 404, 83 A. 215, 444, 40 L. R. A. (N. S.) 253, Ann. Cas. 1913C, 401; Knothe v. Zinzer, 96 Conn. 709, 713, 115 A. 477. The owner of the fee holds his estate subject to the right of the public to the full enjoyment of the easement, under the changing conditions of life, and subject to such control as the Legislature may exercise under its police power. Canastota Knife Co. v. Newington Tramway Co., supra, pages 151, 156, of 69 Conn., 36 A. 1107; New York, N. H. & H. R. Co. v. Bridgeport Traction Co., 65 Conn. 410, 432, 32 A. 953, 29 L. R. A. 367. "Two rights are to be guarded with equal care,—that of the Individual landowner, and that of the public at large; but his estate is the servient tenement." Canastota Knife Co. v. Newington Tramway Co., supra, page 158 of...

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