Norwalk Street Railway Company's Appeal

Baldwin, J.

(dissenting). I concur in the view that divorces may be granted by the General Assembly, in cases where no court has jurisdiction to act, and that the judgments in Starr v. Pease, 8 Conn. 541, 547, and Day v. Cutler, 22 id. 625, can therefore be supported. I also concur in overruling the decision in Wheeler's Appeal, 45 Conn. 306, but do so upon the ground that the legislation which was there in question assumed to grant to a particular person a special and exclusive privilege from the community, of applying for extraordinary judicial relief, as to a particular cause of action, in derogation of the general laws. I dissent, in'other respects, from the judgment and opinion of the court.

The whole legislative power of the State is vested in the *604General Assembly. Except for the few restrictions which the Constitution imposes upon it, that body is as free and. untrammeled as the people would themselves have been, had they retained the law-making power in their own hands, or as they are in adopting such constitutional amendments, from time to time, as they think fit. State v. Williams, 68 Conn. 131, 149.

One of these restrictions is the subject of Art. II, , “ Of the Distribution of Powers.” As originally reported to the constitutional convention by the committee charged with the duty of preparing the draft of a constitution, this article read thus:—

“ Article Second.

Distribution of Powers.

Ҥ1. The powers of government shall be divided into three distinct departments, and each of them confided to a separate body of magistracy, to wit, those which are Legislative, to one; those which are Executive to another, and those which are Judicial to another.

“ § 2. No person or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.”

This article, except for some merely formal alterations in the first section, was a copy of one adopted by Mississippi in the preceding year. 2 Poore’s Charters and Constitutions, 1056. Objection was made in our convention to the second section, and ten days later that was struck out, without a division. Journal of the Const. Conv. of Conn. pp. 78, 55.

This seems to me clearly to evince an intention not to attempt to limit the functions that might be imposed upon those holding a place in any particular one of the three magistracies, to such as should be strictly incident to their special department. It was sufficiently implied from the first section, in connection with the three following articles, relating to the legislative, executive and judicial departments, that no legislative power should be exercised except by the Gen*605eral Assembly, and no judicial power except by judicial officers. The supreme executive power (not, as in the Constitution of the United States, the executive power) was also exclusively vested in the Governor. But the framers of our Constitution, differing from many of those who had fulfilled similar tasks for other States, recognized the fact that it is practically impossible to establish in every instance a plain line of demarcation between legislative, executive and judicial functions, and deemed it unnecessary to deprive the State of such services as it might desire from any of its citizens, because he held office in a department to which they might not properly pertain. See 1 Story on the Constitution, § 524; Pomeroy’s Constitutional Law, § 173. Certain judicial and executive officers were, by Art. X, § 4, expressly debarred from the General Assembly, but I find no other provision to prevent the discharge by any magistrate, of public duties in addition to those peculiarly belonging to his special department, whether he assume them voluntarily, or they be imposed as a statutory duty.

There are powers of government which, in one sense, are, as the case may be, legislative or judicial, and in another sense are not. The powers ordinarily granted to municipal 'corporations to regulate their local affairs and pass by-laws or ordinances, are of a legislative character. Such ordinances have, within their proper sphere, the force of law; but no one would contend that they are void because not passed by the General Assembly. The rules of practice and pleading prescribed by the judges of the Superior Court from time to time are also law as to the cases to which they apply; but( the legislative action from which they proceed is really made by the statute which authorizes them an incident of judicial power. The jurisdiction long exercised by our courts with respect to the layout of new highways, is of an administrative quite as much, to say the least, as of a judicial nature. The General Assembly might itself give such relief, and sometimes does. State v. Williams, 68 Conn. 131. It might confide these functions to an administrative board, like the railroad commissioners. It can give an appeal from such a *606board to the courts. Westbrook's Appeal, 57 Conn. 95, 104; Fairfield's Appeal, ibid. 167, 172. It can give a similar appeal to a tax-payer who claims that his property has been assessed upon an undue valuation; or who objects to the licensing of a particular liquor seller. Such an appeal may serve to turn the matter of controversy into a cause of a judicial nature. Beard's Appeal, 64 Conn. 526, 534. Yet its origin may still so far determine the form of proceeding as to leave the court free to exercise a discretionary power, unfettered by the ordinary rules that govern judicial trials. Its function is, in truth, one both judicial and executive in its nature, and so one which the General Assembly might properly commit to either the judicial or executive department, or to both. Hopson's Appeal, 65 Conn. 140, 146.

Our statutes were revised in 1821, three years after, the adoption of the Constitution, by a very able commission, headed by Chief Justice Swift. They fully appreciated the great revolution that had been accomplished by the constitutional distribution of the powers of government. Rev. of 1821, p. 150. Part of their task was to weed out all existing legislation that was inconsistent with it. Nevertheless this Revision retained the old provisions authorizing the County Courts to lay county taxes, and added one charging them with the duty of taking care of, letting, selling or buying, county property, at their discretion (pp. 141, 250) ; gave any two justices of the peace in any town power to make rules for confining or killing dogs, when necessary for public safety (p. 179); authorized any justice of the peace to commit a witness who refused to answer any proper question put to him by grand jurors, meeting as a court of inquiry (p. 260); and forbade tanning, except by persons who had proved their skill to the County Court and received a license from it for the purpose (p. 308).

Our statutes, since the Revision of 1821, have contained continually increasing grants of jurisdiction to our courts and judges over matters of administrative procedure. They rest, it seems to me, on solid grouud of public convenience and practical necessity, and if it be claimed, as in this case, that *607the constitutional provision as to the distribution of powers has been transgressed, “ the sufficient answer is,” to quote from a recent opinion of this court, in which all the judges concurred, “that these great functions of government are not! divided in any such way that all acts of the nature of the functions of one department can never be exercised by another department; such a division is impracticable, and if carried out would result in the paralysis of government. Executive, legislative, and judicial powers, of necessity overlap each other, and cover many acts which are in their nature common to more than one department. These great functions of government are committed to the different magistracies in all their fullness, and involve many incidental powers necessary to their execution, even though such incidental powers, in their intrinsic character, belong more naturally to a different department.” In re Application of Clark, 65 Conn. 17, 38.

Courts may properly be called upon to aid administrative tribunals in the exercise of their powers, whenever there is need of judicial relief. The dignity and independence of the judiciary is in no way impaired by making it ancillary, in such cases, to the work of another department. Interstate Commerce Commission v. Brimson, 154 U. S. 447, 487.

The applicant in this case holds a franchise from the State for the construction of a railway in certain streets in the city of Norwalk. The general laws provide that in such a case the city authorities, or the Superior Court, or a judge thereof, on appeal, shall first approve the plan of construction, and that a neglect by the city either to approve or disapprove, within a time specified, shall be deemed equivalent to a disapproval.

It was undoubtedly competent for the General Assembly to grant this franchise, and to guard against its improper exercise by giving the city supervisory powers. It was equally within its appropriate domain to grant an appeal to some suitable tribunal from any unreasonable conditions which the city might impose. I do not think that it can be said, as matter of law, that the Superior Court, or a judge thereof, is an unsuitable tribunal, or one upon which the Constitution forbids such a duty to be imposed. The function so conferred *608upon it may, perhaps, be regarded as one both judicial and executive in its nature. If so, the long-continued practice of the State has settled, if it was ever doubtful, to quote from another of our recent opinions, “the true meaning of the constitutional requirement that judicial and executive powers shall each be confided to a separate magistracy, so far as it affects this question. Such a practical construction may safely he accepted, when the theoretical distinction to be drawn by the court must be subtle and doubtful.” Hopson's Appeal, 65 Conn. 140, 146.

I think, however, that the appeal to Judge Hall may fairly be regarded as a judicial proceeding, calling for the exercise of judicial power. He was bound to dispose of it in accordance with the fundamental rules of law. Hopson'S Appeal, 65 Conn. 140, 148. His decision, subject to that limitation, was “final and conclusive upon the parties.” Public Acts of 1895, p. 631. Here is a cause, brought before a judicial magistrate, to redress a wrong, and so obtaip the benefit of a public grant; known rules of procedure; a party plaintiff and a party defendant; provision for a final judgment determining the right in controversy'-; and for an appeal to this court for error in law. Central Railway and Electric Company's Appeal, 67 Conn. 197, 206. Such a proceeding, it seems to me, may fairly'- be termed judicial.

But if it be deemed to involve only an exercise of quasi-judicial or administrative power, for reasons already stated I think such a power can be lawfully conferred on a judge of the Superior Court. Controversies as to the manner in which the use of a franchise, granted for the public benefit, shall be guarded in the public interest, may ordinarily be settled either by legislative, judicial, or administrative proceedings, at the will of the legislature, as it may be expressed in the grant, or in the general laws passed to regulate its exercise.

The fact that the city of Norwalk took no action upon the plan submitted by the railway company, does not seem to me to vary the appellate character of this proceeding. Inaction, under such circumstances, was as prejudicial to the company as adverse action. It is always competent for a legislature *609to treat a failure to dissent within a reasonable time as equivalent to assent, or an omission to accept as equivalent to a refusal. Gilfillan v. Union Canal Co., 109 U. S. 401.

I do not, however, regard the duty of the judge of the Superior Court to take cognizance of this petition, as at all dependent on its being in the nature of an appeal. In my opinion, it would have been the same, had the statute authorized the submission of the plan of construction to him as an original proceeding. U. S. v. Ritchie, 17 How. 525. The Constitution required the establishment of a Superior Court, but its “powers and jurisdiction,” as well as those of all inferior courts, were left to “be defined by law.” Art. V, § 1. The statute, which governs this case, is such a law. It defines the powers and jurisdiction of the Superior Court and of its judges as to a particular class of controversies. A difference of opinion between a municipal corporation and a private corporation as to what is a reasonable use of a legislative franchise affecting the public highways, which difference must be settled before the franchise can be used at all, seems to me to present a case which it is eminently proper to place within the jurisdiction of a court. An analogous proceeding at common law was that by writ of certiorari, in the exercise by the Court of King’s Bench of a general superintending power over not only inferior courts, but any persons invested by the legislature with power to decide on the property or rights of the citizen. Le Roy v. Mayor, 20 Johns. 480, 488; Mendon v. County Commissioners, 2 Allen, 463, 465. Had the General Assembly authorized a railway company, whose plan of construction, though duly submitted to the city authorities, had neither been approved nor disapproved, to apply to the Superior Court for a mandamus to compel them to act, there nuld have been no objection to such a remedy. But if such a matter can be brought before the judiciary in that way, is it not a mere question of legislative policy whether an opportunity shall be granted to seek full relief in the same forum, by substituting for an authority that has failed to do its duty an authority not less fitted to decide impartially, and better fitted *610to weigh evidence and construe the law? To me it seems also a mere question of legislative policy, whether or not to confer upon the courts in the first instance the right to pass upon the plan of construction proposed as the mode of exercising a railway franchise. A law to that effect would define their jurisdiction none the less because it extended it. It would remit for judicial decision an administrative question, but one involving rights of property, and so affecting large public interests as to call for a prompt and final decision. It would, in my view, become a judicial question as soon as the law brought it before judicial authority in a judicial proceding. People v. Long Island R. R. Co., 134 N. Y. 506, 31 Northeastern Rep. 873.

A motion for a rehearing was filed by the Norwalk Street Railway Company in August, 1897, and argued at the succeeding October term of this court held in Bridgeport.

John W. Ailing and George D. Watrous, with whom were J. Belden Hurlbutt and Winthrop H. Perry, for the motion.

Goodwin Stoddard, with whom was Bdward M. Lockwood, in opposition to the motion.

Pee Cueiam.

The motion isjbaled. The appeal to Judge Hall was taken under the provision of the Act of 1895, authorizing an appeal whenever the municipal authorities shall fail to notify the railroad company of their decision as prescribed, and transferring in such event to the court, “ the same powers with reference to said plan and the acceptance or modification thereof, that said municipal authorities would have had under the provisions of said Act” of 1893. This appeal should have been dismissed, because the court had no jurisdiction to entertain such an application; and for this reason we reversed the judgment.

Counsel now claim that the appeal to Judge Hall was also an appeal under the preceding provision of the Act of 1895, authorizing an appeal from any “decision, denial, order or *611'direction ; ” and requiring such appeal to be by petition stating specifically the portion of such decision, etc., appealed from, and the reasons of such appeal; and urge their failure to argue this claim upon the original argument as a ground for granting the present motion.

The considerations now suggested in support of this claim, as well as those in further support of the appellant’s main contention, were carefully weighed before our decision was announced. We held that the appeal to Judge Hall was not taken from any decision, etc., under the first provision of the Act of 1895, but was taken solely under the later provision which we held to be invalid. The judgment of reversal simply directs the dismissal of the application to Judge Hall, for want of jurisdiction; it is not a bar to the new presentation of a plan to the city council and a proper appeal, if occasion shall arise, under the first provision of the Act of 1895.