Walkinshaw v. Laffin

• Decision Date: 04 June 1943
• Citation: 32 A.2d 547,130 Conn. 122
• Court: Connecticut Supreme Court
• Parties: WALKINSHAW v. O'BRIEN. LAFFIN v. APALUCCI et al. CASSIDY v. CITY OF WATERBURY. DE FELICE et al. v. ZONING BOARD OF APPEALS OF TOWN OF EAST HAVEN et al.

130 Conn. 122

32 A.2d 547

WALKINSHAW

v.O'BRIEN.

LAFFIN

v.APALUCCI et al.

CASSIDY

v.CITY OF WATERBURY.

DE FELICE et al.

v.ZONING BOARD OF APPEALS OF TOWN OF EAST HAVEN et al.

Supreme Court of Errors of Connecticut.

June 4, 1943.

COPYRIGHT MATERIAL OMITTED.

Actions by George Walkinshaw against Edward J. O'Brien, by Charles Laffin against Nicholas Apalucci and others, by John H. Cassidy against the City of Waterbury, and by Louis DeFelice and others against Zoning Board of Appeals of the Town of East Haven and others. On rule to show cause, issued by the Supreme Court of Errors, why the appeals in the actions should not be erased for want of jurisdiction of the court to decide them.

Rule dismissed.

BROWN, J., dissenting.

T. Holmes Bracken, of New Haven, Andrew D. Dawson, of Waterbury, Victor M. Gordon, of New Haven, Maurice T. Healey and William B. Hennessy, both of Waterbury, and Edward L. Reynolds and Joseph I. Sachs, both of New Haven, for the parties ordered to show cause.

Richard F. Corkey, Asst. Atty. Gen., and Francis A. Pallotti, Atty. Gen., and Roscoe T. Steffen, of New Haven, amici curiae.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

MALTBIE, Chief Justice.

Of these four cases, three were brought to courts of Common Pleas as they had existed before Chapter 283 of the 1941 Supplement to the General Statutes, establishing a single court of Common Pleas throughout the state, took effect, but, by virtue of § 785f, were taken over and decided by that court; and the fourth case, DeFelice v. Zoning Board of East Haven, was an appeal from a municipal board taken directly to the Court of Common Pleas established by the act after it became effective. On April 14, 1943, after the cases had been argued on the merits, the Superior Court in Fairfield County, Cornell, J., in the case of Osborn v. Zoning Board of Appeals, held that the legislature did not have the power under the constitution to establish the Court of Common Pleas as constituted in the act and that it never came into legal existence. In Woodmont Ass'n v. Town of Milford, 85 Conn. 517, at page 524, 84 A. 307, at page 310, speaking by Prentice, J., we said: ‘Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken, and the matter passed upon, before it ‘can move one further step in the cause, as any movement is necessarily the exercise of jurisdiction.’ [State of] Rhode Island v. [Commonwealth of] Massachusetts, , 37 U.S. 657, 717, 9 L.Ed. 1233; Denton v. [Town of] Danbury, 48 Conn. 368, 372.' See, also, Marcil v. A. H. Merriman & Sons, Inc., 115 Conn. 678, 682, 163 A. 411. Mindful of that injunction and of the uncertainty created by the decision of the Superior Court as to the validity of judgments which have been entered by the Court of Common Pleas since the act of 1941 went into effect and its right to hear and decide other cases, we cited counsel in the four cases to appear and show cause why the cases should not be dismissed for want of jurisdiction. In our study of the question we have had not only the benefit of the very learned opinion of Cornell, J., and the arguments of counsel but also the assistance of the attorney general, through his deputy, Richard F. Corkey, and of Professor Roscoe T. Steffen, a member of the New York bar and of the faculty of the Yale Law School, both of whom argued the case and submitted carefully considered briefs.

Previous to the time when the act of 1941 took effect there was a Court of Common Pleas in each of five of our counties and one in the judicial district of Waterbury. General Statutes, § 5321 et seq.; Cum.Sup.1939, § 1371e. In general these courts had exclusive jurisdiction in their respective counties or district of appeals from justices of the peace and from municipal courts when appeals from them were not required to be taken to the Supreme Court of Errors; Cum.Sup.1939, § 1364e; they had exclusive jurisdiction of actions for legal relief wherein the matter in demand exceeded $100 but did not exceed $500, and of actions for equitable relief wherein the matter in demand did not exceed the last mentioned sum; they had concurrent jurisdiction with the Superior Court of all actions claiming either legal or equitable relief wherein the matter in demand exceeded $500 but did not exceed $2,000, with an additional concurrent jurisdiction with the Superior Court of actions for foreclosure of mortgages or liens regardless of the extent to which the matter in demand might exceed $2,000; General Statutes, Cum.Sup.1939, § 1396e; and in criminal matters they had exclusive jurisdiction of appeals from justices of the peace or municipal courts in the counties or district for which they were created. General Statutes, § 6397. The judge of each of these courts sat only in the county or district in which was located the court to which he was appointed. Each of these courts was a local tribunal as regards the county or district for which it was established. The 1941 act established a single Court of Common Pleas for the entire state, with sessions in each county and the judicial district of Waterbury; the judges were placed on circuit; the court was given exclusive jurisdiction of legal actions wherein the matter in demand exceeded $100 but did not exceed $2,500, of equitable actions wherein the matter in demand did not exceed that sum, and of appeals from municipal boards, officers and commissioners and from the liquor control commission; and concurrent jurisdiction with the Superior Court of actions for the foreclosure of mortgages or liens wherein the matter in demand exceeded $2,500; General Statutes, Sup.1941, §§ 808f-810f; and with reference to appeals from justices of the peace and municipal courts and criminal proceedings, it retained the jurisdiction which the former Courts of Common Pleas had had, except in civil cases appeals from justices of the peace and municipal courts were to be taken to the Court of Common Pleas in all counties, whereas previously in any counties not having Courts of Common Pleas they were required to be taken to the Superior Court.

Whether the General Assembly might under the constitution establish a Court of Common Pleas as set up in the 1941 act depends upon the effect of Section 1 of Article V of our constitution, which, as printed at the beginning of the General Statutes, Revision of 1930, provides as follows: ‘The judicial power of the state shall be vested in a Supreme Court of Errors, a Superiour Court, and such inferiour courts as the General Assembly shall, from time to time, ordain and establish: the powers and jurisdiction of which courts shall be defined by law.’ The first question which presents itself is as to the meaning to be given to the words ‘such inferiour courts.’ The ‘Superiour Court’ had been established in May, 1711, as a trial court of general jurisdiction and was in existence when our constitution was adopted in 1818. 5 Col.Rec. 238; Statutes 1808, p. 205. There can be no doubt that it was the intent of the constitution that this court should continue, with the essential characteristics it had previously possessed. See Statutes 1821, p. 138. The meaning of the words ‘inferiour courts' is by no means so clear. Little help in determining that meaning can be gleaned from the Journal of the Constitutional Convention or from the contemporary reports of its doing which appeared in the Connecticut Courant. One of the first acts of the convention was to appoint a committee to draft a constitution. The draft of the section we are considering was adopted by the convention without change except for the matter of punctuation to which we shall refer later, and without a roll-call vote, which was the method of voting usually adopted when there appeared among the members of the convention any material differences of opinion; Journal, p. 41; nor does the newspaper report of the proceedings of that day contain any reference to any debate upon the provision. Connecticut Courant, September 15, 1818. The only other action taken with reference to this section by the convention was after the various provisions of the constitution as drafted by the committee had been approved and the question of any amendments to the document as a whole was opened. A motion was made to strike out from the section the words ‘of errors, a superiour court’ and to insert in lieu thereof these words: ‘which shall consist of a chief judge, and not more than four other judges.’ The Journal entry is: ‘The motion was divided, and the question on striking out decided in the negative. So the motion was lost.’ Journal, p. 67. No roll-call vote was taken upon the proposed amendment and the only reference to it in the newspaper report is that an amendment was offered which would reduce the number of judges to five which did not pass. Connecticut Courant, September 22, 1818. Not much significance can be attached to the action on this motion to amend in view of the little attention it received, and it would be pure assumption to attribute to the convention in this matter any intention with reference to the meaning it attached to the words ‘inferiour court.’

In the acts establishing the various counties of the state, provision was made for a county court in each of them; 2 Col.Rec. 35 (1666), 7 Col.Rec. 12 (1726), 10 Col.Rec. 56 (1751); Public Acts 1784-1791, pp. 318, 329 (1785); and these courts were in existence when the constitution was adopted; they were called ‘courts of common pleas or county courts' and had in civil actions unlimited jurisdiction at law and jurisdiction in equity where the matter in demand did not exceed $335, and in criminal matters jurisdiction of offenses ‘not extending to life, limb, banishment, adultery, or divorce,’ or, except for the crime of horse stealing, ‘where the punishment shall [not] extend to confinement in New-gate.’ Statutes 1808, p. 207. From these courts, in all but a few...