Woodmont Ass'n v. Town of Milford

• Decision Date: 19 July 1912
• Citation: 84 A. 307,85 Conn. 517
• Parties: WOODMONT ASS'N v. TOWN OF MILFORD.
• Court: Connecticut Supreme Court

84 A. 307

85 Conn. 517

WOODMONT ASS'N v. TOWN OF MILFORD.

Supreme Court of Errors of Connecticut.

July 19, 1912

Appeal from Superior Court, New Haven County; Lucien F. Burpee Judge.

Application by the Woodmont Association to a judge of the superior court under section 36 of its charter (14 Special Laws, p. 464) against the Town of Millford. From a judgment of dismissal the applicant appeals. Affirmed.

Wheeler J., dissenting.

The section of the charter referred to reads as follows: " Sec. 36. It shall be the duty of the selectmen of the town of Milford and an equal number of the burgesses annually to determine the amount of money that the town of Milford shall pay over to the association for the making, repairing, and laying out of the highways and sidewalks, for maintaining a fire department and street hydrants, and for lighting the streets within the territory of said association; provided, however, that no money shall be paid to said association for making and repairing sidewalks, for maintaining a fire department, or street hydrants, or for lighting the streets within the territory of said association, or for any of such purposes, unless the town of Milford shall appropriate moneys for the same purposes, to be expended within the limits of said town outside the limits of said association; and in case the selectmen and the burgesses aforesaid cannot agree upon the amount of money to be paid by said town, then either the said town of Milford or said association may apply to any judge of the Superior Court to have him fix and determine the amount that shall be paid by said town to said association. Said judge shall cause reasonable notice thereof to be given to the parties of the time when and place where he will hear said cause, and said judge is hereby empowered to fully hear said parties and determine the amount that said town shall pay to said association for the current year, and shall file his opinion with the clerk of the Superior Court for New Haven county. The sum thus determined shall be paid by said town into the treasury of said association and said town shall not be liable to make or repair any highways or sidewalks within the limits of said association; but said town shall continue to be liable to make and repair all bridges in the territory included in said association." Sp. Laws 1903, p. 464.

The complaint alleges, in substance, that the applicant is a municipal corporation chartered by the General Assembly, and located within the limits of the defendant town; that the annual tax of said town yielded about $71,000, of which about $24,000 was spent for certain general town purposes; that of this sum of $71,000 about $11,000 was paid by residents of the applicant association; that the entire expense of maintaining highways, sidewalks, a fire department, street hydrants, and street lights within the limits of the association is directly borne by the association, the town of Milford expending nothing directly therefor, or for any other purpose whatsoever; that it was and is necessary for the association to lay out and expend for the current year between $8,000 and $9,000 for the purposes named; that it is in want of money to meet such necessary expenditure; that the selectmen and board of finance of the town and an equal number of burgesses of the association have held several meetings for the purpose of determining the amount of money that the town should pay over to the association for the purposes enumerated in section 36 of the charter from the 1st day of September, 1911, to the 1st day of September, 1912; and that said selectmen and the board of finance and said equal number of burgesses cannot agree upon an amount to be so paid for such purposes, or for any other purpose where money is required from said association that is legally to be paid by said town to said association. The judge is asked to fix and determine the amount to be paid by the town to the applicant conformably to the provisions of the above section 36.

William Kennedy, of Naugatuck, and Spotswood D. Bowers, of Bridgeport, for appellant.

Robert C. Stoddard and Omar W. Platt, both of New Haven, for appellee.

PRENTICE, J. (after stating the facts as above).

This application was brought under the assumed authority of section 36 of the applicant's charter, Special Laws of 1903, p. 449. It was dismissed, upon motion, upon three jurisdictional grounds, to wit: (1) That said section had been repealed; (2) that its allegations did not show that the prescribed conditions precedent to its presentation existed; and (3) that it did not present a question of judicial cognizance.

The claim of repeal rests upon the enactment in 1911 of an act creating a department of finance in the town of Milford. Special Laws of 1911, p. 91. This act contains no express repeal of the charter section. The only repeal expressed in it is one of inconsistent acts and parts of acts. This provision added nothing to what would have resulted by implication. " Such repeals are not favored, and will not be extended beyond the reason therefor, nor presumed, where the old and new may stand together. If both the earlier and later statutes can be reconciled, they must stand and have concurrent operation. The repugnancy between the town statutes must be clear and manifest to warrant a court in holding that the latter repeals the former. *** Repeals by implication extend to only so much of the prior statute as is within the reason of the repeal. They are never extended further than the inconsistency compels." Fair Haven & W. R. Co. v. New Haven, 75 Conn. 442, 447, 53 A. 960, 962.

Reading the two enactments under consideration together, we discover no good reason why they may not both stand and have concurrent operation. It is true, of course, that, as a result of the passage of the act of 1911, there can be no allotment or appropriation to the applicant of any sum or sums for any of the several purposes enumerated in section 36 by the action of the joint body specified until there has first been an appropriation or appropriations by the town for such purpose or purposes, or to some other available fund, pursuant to the method ordained in the act, and then only within the limits of such appropriation or appropriations. But we discover no inconsistency between that proposition and the further one that after the requisite appropriations have been made by the town, in the manner prescribed by the act of 1911, and the funds have thus been put at the service of the town officials, the joint board may proceed, as provided in the charter section, to designate a portion thereof to be paid over to the Woodmont Association, to be expended under its direction for the purposes for which the appropriations were made. Doubtless the act would thus operate in restraint of the freedom of action of the board, and thus limit the power which it previously enjoyed. But this restraint is not one which is necessarily, or by reasonable implication, destructive of all the powers conferred upon it in the matter of payments directly to the applicant. To the extent suggested, the provisions of the two enactments may well be reconciled and stand together, with the result that a condition of disagreement might arise, such as, under the terms of section 36, would justify an application to a judge.

The present application was not drawn with the care which might have been bestowed upon it, to the end that it clearly and unmistakably appear that judicial questions were presented. There are indeed strong indications that it was within its purpose to have the judge pass upon certain purely administrative ones. But that fact would not justify its dismissal, if a judicial question was also presented. Spencer's Appeal, 78 Conn. 301, 303, 61 At1. 1010. A judicial question may arise out of, or as incidental to, action upon a purely administrative matter. Norwalk Street Ry. Co.'s Appeal, 69 Conn. 576, 599, 37 A. 1080, 38 A. 708, 39 L.R.A. 794. The action or nonaction of administrative boards may become the subject of judicial inquiry or review whenever it is claimed, among other conditions, that it works material damage to individual or corporate rights, or invades or threatens such rights, or is so unreasonable as to justify judicial intervention, or is not consonant with justice, or that a legal duty has not been performed. Norton v. Shore Line Ry. Co., 84 Conn. 24, 35, 78 A. 587; New York, N.H. & H. R. Co.'s Appeal, 80 Conn. 623, 636, 70 A. 26; Spencer's Appeal, 78 Conn. 301, 308, 61 A. 1010; Norwalk Street Ry. Co.'s Appeal, 69 Conn. 576, 599, 37 A. 1080, 38 A. 708, 39 L.R.A. 794; Fenwick Hall Co. v. Old Saybrook, 69 Conn. 32, 39, 36 A. 1068; State ex rel. Morris v. Bulkeley, 61 Conn. 287, 375, 23 A. 186, 14 L.R.A. 657. " In a doubtful case the motion (i. e., to dismiss) should be denied. And where the power in controversy is so near the border line of judicial power that its definition calls for subtle distinctions, and its nature depends to an extent on the purpose and manner of its use, the question of law may be dependent upon further allegations, before the test of the question of power can be applied, or it may have to await trial." Norton v. Shore Line Ry. Co., 84 Conn. 24, 35, 78 A. 587.

There runs through this application the underlying complaint that a legal duty has not been done; that the rights of the applicant, as representing its taxpayer residents, inherent in the situation disclosed, and recognized and protected by its charter provision noted, have been ignored and that the situation which has developed by reason of the action of the town and its authorities is not consonant with justice, and so unreasonable and unfair as to justify judicial interference. This grievance, it is...