English v. New Haven & Northampton Co.

32 Conn. 240

Opinion

Butler,

Footnotes

•

* J.

The defendants raise upon this record, and the parties discuss in the briefs submitted to us, the question whether the General Assembly exceeded the constitutional limitations of their power when they passed the act of 1857, on which this action is founded. The defendants insist that the provisions of that act, so far as they delegated authority to the court of common council of the city, at their discretion to direct the defendants to widen the bridge in Temple street, and enforce the direction by the proceedings in question, impair the obligations of their contract with the government of the state, and take their property without compensation. We are all satisfied that the claim of the defendants is not well founded.

First, because the act did not contemplate any thing which could impair any obligation of that contract, or deprive the defendants of the full enjoyment-of any chartered privilege, or take their properly for public use, within the meaning of either constitutional limitation.

The grant to the defendants contains an express reservation of the right to alter, amend or repeal it at the pleasure of the General Assembly, and whatever might be true if the charter was a close one, the General Assembly could impose upon the defendants any additional condition or burthen connected with the grant, which they might deem necessary for the protection or welfare of the public, and which they might originally and with justice have imposed. The excavation through Temple street was made by the corporation to whose rights and obligations the defendants have succeeded, by authority of their charter, and it was eminently just and proper, and in accordance with the policy of our legislation, to require that company, or the defendants, to bridge the excavation to any extent which public convenience and necessity might then or at any time require, and as an original or supplemental provision of the charter. It has been made a question in another state whether, the legislative power can impose a new public burthen on a private corporation, without violating the fundamental principles of the social compact, where the burthen is in no way connected with the grant as a consideration for it, or a condition annexed to it for the protection of individual -or public rights which would otherwise be injuriously affected by the exercise of the franchise conferred. But that question, if it be a question, has not been raised, and could not be successfully made in this case, for the burthen here imposed is clearly connected with the grant, and necessary to protect the public from injurious consequences resulting from an exercise of the power conferred by the charter.

And in the second place, because, if it were conceded that the duty, of widening the bridge rested upon the city under the general provisions of law relative to highways, at the time the action in question was passed, the court of common council would not be an interested-tribunal. The construction and maintenance of highways, and bridges which form a part of them, is a public burthen, in which no corporation can have any vested right, and which the General Assembly apportions and imposes according to its sense of justice upon-the territorial subdivisions and corporations of the state. If the city were bound under such apportionment to widen the bridge in question, and the General Assembly saw fit to transfer the duty from the city to the defendants, and delegate to the common council authority to direct when the duty should be performed and to enforce its performance, the common council in the exercise of that authority would be disinterested. The transfer of duty from the city to the defendants would be the immediate act of the legislature alone, and in merely determining when the duty should be performed, and in enforcing perform» anee, that board of officers would not act as agents of the city, but as the agents of the law.

But thirdly, the obligation to widen this bridge, whenever public convenience and necessity required it, did not rest upon the city, but was in fact imposed as a condition of their charter upon the defendants. The several acts which constitute that charter contain express provisions which require the corporations created by it to bridge the excavations they might make through the streets of the city. Reading these provisions in the light of surrounding circumstances, and in view of vthe policy of the legislature to charge such corporations with the duty of restoring highways, when disturbed, to their former state of usefulness, we think it entirely clear that they intended to provide that the highway in question should be so restored whenever and to whatever extent the growth of the city and the wants of the public might require, and as a continuing duty. That being so, there is nothing in the act of 1857 which affects the defendants and is matei’ial to this case, except a delegation of authority to a disinterested and proper tribunal to determine when such further restoration had become necessary, and direct it to be done at the expense of the defendants; and of that the defendants can not legally or justly complain.

The superior court must be advised to render judgment for the plaintiff.

In this opinion the other judges concurred.

This ease being submitted on briefs, was considered by Judge Butler, although he was not present at the term.