This application was brought under the assumed authority of § 36 of the applicant's charter. 14 Special Laws, p. 464. It was dismissed upon motion upon three jurisdictional grounds, to wit: (1) that said section had been repealed, (2) that its allegations did not show that the prescribed conditions precedent to its presentation existed, and (3) that it did not present a question of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. 16 Special Laws (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 statute can be reconciled, they must stand and have concurrent operation. . . . The repugnancy between the two 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, 446, 53 A. 960. *Page 521
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 § 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 § 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 *Page 522 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 A. 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 id. 708. The action or non-action 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 Electric Ry. Co., 84 Conn. 24,35, 78 A. 587; New York, N. H. H.R. Co.'sAppeal, 80 Conn. 623, 636, 70 A. 26; Spencer's Appeal,78 Conn. 301, 308, 61 A. 1010; Norwalk StreetRy. Co.'s Appeal, 69 Conn. 576, 599, 37 A. 1080, 38 id. 708; 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. "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 the trial." Norton v. Shore Line Electric Ry.Co., 84 Conn. 24, 32, 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 *Page 523 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 true, has not been as distinctly brought out in the allegations as it might have been. But it is so palpably there that it could not properly be disregarded, upon a motion to dismiss, for the reason that the proceeding was one which presented administrative questions only.
The right of the judge to whom the application was addressed to entertain it rests entirely upon the provisions of the charter (§ 36) already referred to. By force of them the judge whose action should be invoked was constituted a special tribunal with defined limited powers, whose jurisdiction of the subject-matter was made dependent upon the existence of certain prescribed conditions. Until and unless such conditions had come into existence he would be wholly without authority to act, and any attempted action on his part would be coram non judice and void. Rhode Island v.Massachusetts, 12 Pet. (37 U.S.) 657, 719; Grumon v.Raymond, 1 Conn. 40, 46; Sears v. Terry, 26 id. 273, 280; Culver's Appeal, 48 id. 165, 173. Any order he might make, or final judgment in form render, would be without effect, if the existence of the prerequisite facts showing jurisdiction did not appear upon the record.Rhode Island v. Massachusetts, 12 Pet. (37 U.S.) 657, 719; Sears v. Terry, 26 Conn. 273, 281, 285. No presumption would be made in favor of jurisdiction. The facts establishing it must affirmatively appear. They must be averred and proven. Sears v. Terry, 26 Conn. 273,281. Until the existence of the prerequisites of jurisdiction appears in the papers, and jurisdiction is thus prima facie shown, the judge could not take hold *Page 524 of the proceeding. To do so would be to assume jurisdiction without apparent authority. "The power to hear and determine a cause is jurisdiction; it is coramjudice, whenever a case is presented which brings this power into action; if the petitioner states such a case in his petition that on a demurrer the court would render judgment in his favour [favor], it is an undoubted case of jurisdiction, whether on an answer denying and putting in issue the allegations of the petition, the petitioner makes out his case, is the exercise of jurisdiction conferred by the filing of a petition containing all the requisites and in the manner prescribed by law." UnitedStates v. Arredondo, 6 Pet. (31 U.S.) 691, 709. The objection of want of jurisdiction may be made at any time. Banks v. Porter, 39 Conn. 307, 308; Rhode Island v. Massachusetts, 12 Pet. (37 U.S.) 657, 717. And the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention. State v. Carroll, 38 Conn. 449, 455; State v. Pritchard, 35 Conn. 319, 325. 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." Rhode Island v. Massachusetts, 12 Pet. (37 U.S.) 657, 717; Denton v. Danbury, 48 Conn. 368,372.
The charter provision permits an application to a judge only in the event of a disagreement of the selectmen and burgess representatives upon the joint board. This disagreement is clearly a jurisdictional fact. Without it action by a judge cannot be invoked. The application does not aver such a disagreement; nor does the allegation that another body of men has vainly tried to agree supply the deficiency. Jurisdiction is predicated upon a prescribed situation, and no other. *Page 525 It is not a sufficient answer to this objection to say that the application might possibly have been amended so that the necessary fact be made to appear, and that an opportunity for such amendment should have been given. Such a course would in itself have involved an assumption of jurisdiction. It would have been the taking of a step in the proceeding, which could not be taken until jurisdiction had first attached by the presentation of an adequate application showing the jurisdictional facts. The judge was therefore right in declining to proceed with the matter, and in dismissing the application for want of jurisdiction. No other course was open to him. Denton v. Danbury, 48 Conn. 368,372.
There is no error.
In this opinion THAYER, RORABACK and RALPH WHEELER, JS., concurred.