With the majority's view that the test determinative of the constitutionality of the 1941 act is one of degree, I am in accord. With the conclusion that in applying this test the legislature did not transcend the limit upon the authority fixed by the constitution, I disagree.
As is pointed out in the opinion, when the constitution was adopted in 1818 the "Superiour Court" was already in existence, and had been for more than one hundred years, as the trial court of general jurisdiction, and "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." A comparison of the jurisdiction of the "courts of common pleas or county courts" and city courts, the only other trial courts of that day, which was limited to $335 in civil actions and subject to appeal to the Superior Court, with the state-wide jurisdiction conferred upon the Court of Common Pleas by the 1941 act is an aid to visualizing the extent to which encroachment by legislative enactment upon the jurisdiction which was the Superior Court's when the constitution was adopted has gone. The jurisdiction so bestowed upon this Common Pleas Court as it materially affects the Superior Court is exclusive as to both legal and equitable actions wherein the matter in demand does not exceed $2500; appeals from municipal boards, officers and commissions; and appeals from the liquor control commission. It is concurrent with that of the Superior Court as to actions for the foreclosure of mortgages or liens wherein the matter in demand exceeds $2500. The encroachment referred to is no less by virtue of the fact that some or all of the appeals mentioned are the creatures of statute, for, in the absence of provision so made, rights violated by a proceeding affording the basis of any such appeal *Page 146 would be the subject of redress in the Superior Court as the court of general jurisdiction.
The metamorphosis in the jurisdiction of the Superior Court manifest from the foregoing is the ultimate cumulative result of a long succession of legislative enactments from 1818 to 1941. It would be neither feasible nor worthwhile to detail them in this dissent for they are legion. Nor would it profit to consider whether the enactment of any given statute prior to the 1941 act violated the constitutional provision now in question. I do, however, refer to three isolated instances, of the many which could be cited, to illustrate the gradual process of attrition employed by the legislature which has whittled away the Superior Court's jurisdiction. When the Common Pleas Courts were established in 1869 and 1870 in the four counties of Hartford, New Haven, Fairfield and New London, the limit in law and equity of their exclusive civil jurisdiction was fixed at $500, and of their jurisdiction concurrent with the Superior Court, at $1000. In 1917 the limit of concurrent jurisdiction of the Common Pleas Courts of Fairfield and Litchfield was increased to $2000. Public Acts, 1917, Chap. 315. In 1921 the same change was made in the jurisdiction of the other Courts of Common Pleas. Public Acts, 1921, Chap. 201, 2. In 1935 this concurrent jurisdiction was further increased to include actions of foreclosure without limit as to maximum amount. General Statutes, Cum. Sup. 1935, 1645c. In 1937 this provision was re-enacted in more emphatic language, declaring that such action may be brought in either court "regardless of how much it [the matter in demand] may exceed two thousand dollars," and that when "brought to the court of common pleas, such court shall have jurisdiction, fully equal to and coextensive with that *Page 147 of the superior court." Sup. 1937, 838d; Cum. Sup. 1939, 1396e.
In 1866 the City Court of Waterbury was created with unlimited jurisdiction in "all civil cases, wherein the title to land is not concerned" and "all suits in equity" except for relief against proceedings in the Superior Court. 6 Spec. Laws 76. In 1868 jurisdiction in foreclosure of premises located within the limits of its jurisdiction was granted and provision made that "the jurisdiction of the superior court within said limits shall be concurrent with that of said city court." 6 Spec. Laws 441. In 1881 the City Court was supplanted by the District Court of Waterbury, which succeeded to all its jurisdiction and powers. Public Acts, 1881, Chap. 121. In 1927 the Court of Common Pleas in the judicial district of Waterbury in like manner became the successor of the District Court. Public Acts, 1927, Chap. 181. This court had unlimited concurrent jurisdiction with the Superior Court in the respects set forth in 5440 of the General Statutes.
In 1927 a Criminal Court of Common Pleas was established in Litchfield County. Public Acts, 1927, Chap. 92. Section 2 provides that it "shall also have concurrent jurisdiction with the superior court of all offenses committed within said county in violation of the provisions of the general statutes relating to motor vehicles, or of the provisions of section 6191 of the general statutes." Section 6191 of the 1918 Revision so referred to is now Cum. Sup. 1935, 1686c, and provides a maximum penalty of a $1000 fine and imprisonment for ten years for misconduct of railroad servants or motor vehicle operators resulting in death. It has been argued that the significance of legislation of the nature of those acts to which I have been referring lies not in their cumulative effect evidencing a violation of the constitution but rather in the contrary indication *Page 148 implicit in the legislature's practical construction placed upon the constitution by their enactment. The answer to this contention is that two wrongs do not make a right, and the legislature cannot lift itself by its own bootstraps on the theory that they do.
From what has already been stated it is evident that the legislature had gone far in increasing the jurisdiction of the several Courts of Common Pleas and subtracting from that of the Superior Court prior to the 1941 act. Among other changes, the Superior Court's jurisdiction of appeals from Courts of Common Pleas was early taken away; cases of all kinds involving an increasingly large amount in issue, finally reaching $2000, had been eliminated; unlimited concurrent jurisdiction in foreclosures had been given to the Courts of Common Pleas and the same was true of the other actions in law and equity in the Court of Common Pleas in the judicial district of Waterbury; and criminal concurrent jurisdiction to impose a maximum penalty of ten years in state's prison had been granted the Criminal Court of Common Pleas in Litchfield County. The 1941 act carried this process of encroachment still further. It raised the Common Pleas' exclusive jurisdiction to $2500 and extended it to include appeals from the liquor control commission as well as those from municipal boards, officers and commissions. In view of the very large values often involved in zoning and tax appeals, this change in jurisdiction is of particular importance, and because of the great number of cases of substantial merit falling within it the $2500 provision also wrought a very vital change in the nature of the two courts. Beyond all this, the act vitally changes the very structure of what had theretofore been the several Courts of Common Pleas, each authorized to function only in its own county or district through its resident judges, by creating in their *Page 149 stead a single Court of Common Pleas of state-wide jurisdiction with fourteen judges on circuit. In short, as Judge Cornell so aptly stated, it brought into being "a replica of the Superior Court." Even though the legislature felt that the state of business in the courts required that additional facilities be provided, this, in my opinion, would afford no justification under the constitution for the passage of the 1941 act. In this connection, however, it is interesting to observe that during the entire court year following the adoption of this act increasing the former number of eight judges, one associate and one deputy judge to fourteen judges, and providing sessions for Middlesex, Tolland and Windham Counties where there had been no Common Pleas Courts before, the total aggregate number of civil cases tried in these three counties was fourteen, and the total number of civil cases tried by the Court in the whole state was six hundred and seventy-two, which was identical with the average number of cases annually tried by the Courts of Common Pleas as they had existed during the ten-year period immediately prior to the adoption of the act.
To sum up, between 1818 and 1941 the legislature by degrees, but none the less progressively and effectively, had been gradually depriving the Superior Court of jurisdiction. Then came the culminating act of 1941 unifying the cumulative encroachment of the past years and establishing another court of state-wide jurisdiction which duplicated the Superior Court. It had laden the proverbial camel's back with many straws already. Finally, by its adoption of this act it added a whole bundle to top all the rest. It is my conclusion that this act violates the constitution, and that under it the Superior Court cannot "continue, with the essential characteristics it had previously possessed." For this reason I have a deep and abiding *Page 150 conviction that now, once and for all, is the time to call a halt before it is too late. By this course only, in my judgment, can the continuance of the Superior Court with those characteristics which belonged to it at the adoption of the constitution be assured, and also the right of the individual to bring his action in a proper case to that court, which the constitution expressly and so wisely guarantees, be preserved. To uphold the 1941 act will serve to reduce well toward the vanishing point the distinction between the Superior and Common Pleas Courts. By the act's express provision the former has already been rendered "inferior," at least as to those appeals of which exclusive jurisdiction is given to the Court of Common Pleas. Transfer by the legislature of such jurisdiction of but a few more causes of action such as motor vehicle cases, compensation and probate appeals, and divorces, which would be hardly more unreasonable than the changes wrought by the 1941 act, will be all that is needed to complete the demotion of the Superior to an "inferior" court with the consequent exaltation of the Court of Common Pleas. No stretch of the imagination is required to foresee that further legislation of this nature may well so decrease the business of the Superior Court as to warrant a substantial reduction in the number of its sessions and judges by the legislature. When that time comes this court will be powerless to prevent it. Instead, we shall be restricted to passive acquiescence as we observe the Superior Court supplanted by this new statutory court of general state-wide jurisdiction, relegating the Superior Court as heretofore known to a memory.
I conclude that Judge Cornell's decision that the 1941 act was unconstitutional is correct. *Page 151