I concur in the foregoing opinion, except so far as it relates to the constitutionality of the statute under which the appeal to the Superior Court was taken.
This proceeding, when pending before the railroad commissioners, was a quasi-judicial one. Chester v. ConnecticutValley R. Co., 41 Conn. 348, 355; State v. New Haven N.Co., 43 id. 351, 381; Woodruff v. New York N.E. R. Co., 59 id. 63, 88. A quasi-judicial proceeding may become a judicial one, if transferred by way of appeal or review to a judicial tribunal. Beard's Appeal, 64 Conn. 526, 534; Hopson'sAppeal, 65 id. 140, 146; Norwalk Street Ry. Co.'s Appeal, 69 id. 576, 599, 607; Upshur County v. Rich, 135 U.S. 467,477; People v. Long Island R. Co., 134 N.Y. 506, 31 Northeastern Rep. 873. This has been so transferred by express statutory authority. General Statutes, §§ 3747, 3718.
There must always be a Superior Court, but it is for the General Assembly to define its powers and jurisdiction. Const., Art. V, § I. My associates are of opinion that these sections of our General Statutes are unconstitutional in so far as they purport to authorize the Superior Court, on an appeal of the nature of that now before us from an order of the railroad commissioners, should it disaffirm their order, to make a new one of its own, settling the questions in controversy on their merits. I agree that it would ordinarily be the preferable course to let the proceeding go back to the railroad commissioners and leave it to them to frame a proper order, subject to review, in case of need, by another appeal. I do not agree that such is the only course that can be taken. The doctrine laid down in the opinion of the court seems to me opposed to the words and intent of the Constitution; to the long settled practice of the State; and to repeated decisions of our own. Hall v. Meriden, 48 Conn. 416, 427;Gravel Hill School District v. Old Farm School District, 55 id. 244, 246; Westbrook's Appeal, 57 id. 95, 104; Fairfield's Appeal, ibid. 167, 172; Beard's Appeal, 64 id. 526; Hopson'sAppeal, 65 id. 140, 146; Ives v. Goshen, ibid. 456, 459;Central Ry. Elec. Co.'s Appeal, 67 id. 197, 211; New Haven *Page 310 Steam Saw Mill Co. v. New Haven, 72 id. 276; Fair Haven W. R. Co. v. New Haven, 74 id. 102, 105; Malmo's Appeal, 72 id. 1, 5; New York, N. H. H.R. Co.'s Appeal, 75 id. 264, 266.
The vital point in Norwalk Street Ry. Co.'s Appeal,69 Conn. 576, 600, was the want of any action on the part of the municipality on which an appeal could be founded, so that the Superior Court was in effect asked to take original cognizance of the matter (p. 603). The validity of the statute on which the present proceeding is taken was not questioned, but on the contrary was assumed (p. 611).
For these reasons, and others indicated in my opinions filed in Norwalk Street Ry. Co.'s Appeal, 69 Conn. 576, 603;Bradley v. New Haven, 73 id. 646, 651; and Moynihan's Appeal, 75 id. 358, 366, I dissent from the opinion of the court.
It would have seemed to me a better course for the Superior Court, on disaffirming the order appealed from, to go no farther but let the cause go back for a more equitable disposition by the railroad commissioners. Waterbury's Appeal,78 Conn. 222. But in my view, this was a question to be decided according to the best discretion of the trial court, and if it thought proper to proceed to frame an order of its own, to do so was within its right.