New Haven & Northampton Co. v. State

44 Conn. 376

Opinion

Hovey, J.

*

This case comes before us on a writ of error to reverse a judgment of the Superior Court for Hartford County. The proceedings below were by mandamus, to compel the plaintiffs in error, a railroad corporation created by the laws of this state, to perform a duty imposed upon them by an act of the General Assembly. The act referred to, which was passed upon the petition of Orson W. Stow and others, on the 15th of August, 1875, ordered and made it the duty of the plaintiffs in error, upon the performance by the petitioners of certain conditions, to stop their regular trains of cars at Plantsville in the town of Southington for the purpose of receiving and discharging passengers and freight. It also contained a provision that the order and duty so made and imposed might be enforced by mandamus by the State’s Attorney for the county of Hartford or at the relation of any inhabitant of the town of Southington. The conditions prescribed were performed by the petitioners for the act, but the plaintiffs in error refused to stop their trains at Plantsville as the act required. The State’s Attorney thereupon applied to the Superior Court sitting at Hartford, for a wilt of mandamus to compel the plaintiffs in error to perform that duty. Upon that application an alternative mandamus was issued, which was duly served. The plaintiffs in error made a return in which they admitted that they had not stopped their trains at Plantsville, and assigned various causes for not doing so, one of which was that the act of the General Assembly was in violation of the constitution of the United States. The attorney for the state, following the common law practice which prevailed in England before the statute of VI and VII Victoria, ch. 67, objected to the return as insufficient, and moved for a concilium, in order that the question of its sufficiency might be set down for argument on a certain day, and determined in a summary manner, without a formal demurrer and without pleadings. The court below, however, declined to entertain the motion, and then the attorney demurred to the return. But there was no entry upon the record of a joinder in demurrer. Overlooking this informality, or deeming it of no importance, as it was not excepted to, the court reserved the question as to the judgment which should be rendered for the advice of this court. And this court, after argument and deliberate consideration, advised the Superior Court that the return to the alternative mandamus was insufficient and that a peremptory mandamus should be granted. In pursuance of that advice the Superior Court adjudged that a peremptory writ should issue directed to the plaintiffs in error, commanding them, immediately upon the service thereof, and thereafter, to stop at Plantsville their regular passenger and freight trains for the purpose of receiving and discharging passengers and freight. The writ was accordingly issued, but before it was served the defendants below brought the present writ of error.

The defendant in error now moves that the writ of error be struck from the docket, which is equivalent to a motion to quash the writ, on several grounds. In the first place he insists that a writ of error does not lie on the award of a peremptory mandamus; and in support of this position he relies mainly upon the case of The King v. The Dean and Chapter of Trinity Chapel in Dublin, 1 Stra., 543; S. C., 8 Mod., 27. That case was on a writ of error from the King’s. Bench in Ireland to the King’s Bench in England on the award of a peremptory mandamus, and the question was whether a writ of error would lie on such an award. After two ai’guments it was determined that it would not lie, and it was accordingly quashed. The court in giving judgment said that it was against the nature of a writ of error to lie on any judgment hut in causes where an issue might be joined and tried, or where judgment might be had on demurrer. This judgment was subsequently affirmed in the House of Lords, all of the common law judges being of opinion that a writ of error would not lie. 2 Bro. P. C., 554. The same point afterwards came before the House of Lords in the case of Pender v. Herle, 3 Bro. P. C., 178, and the like decision was made upon the ground that to grant or deny a mandamus was a mere award of the court and not a strict formal judgment. The doctrine of these decisions was recognized and enforced in the other cases referred to by the defendant in error.

In the case of The King v. The Lord of the Manor of Oundle, 1 Ad. & El., 283, the question of the sufficiency of the return to an alternative mandamus had been argued upon a motion for a concilium, and after argument a peremptory mandamus had been awarded. Whereupon the counsel for the defendants, with the purpose of having the question carried before a court of error, moved for and obtained a rule to show cause why an order should not be made requiring the prosecutor to demur to the return and the defendants to join in demurrer, and that judgment thereupon be entered on the record that the return be quashed for insufficiency and a peremptory mandamus awarded. It was argued in support of the rule that the effect of the statute of IX Anne, ch. 20, in allowing the prosecutor to plead to or traverse the return and the defendant to reply, take issue or ■ demur, was to enable a party dissatisfied with the judgment in a mandamus proceeding to have it reviewed upon a writ of error; that although it was not expressly mentioned in the statute that the prosecutor might demur to the return, yet it was provided that he might plead to or traverse the facts contained in it, and therefore he might plead that they did not amount to a sufficient return in law, and a substantial demurrer would be an issuable plea. But the court discharged the rule; Patterson, J., saying that “ the original practice was that the' party objecting to a return made an application to the court to quash it, which was in the nature of a demurrer; if the application was sustained, a peremptory mandamus went, and there could be no proceeding in error.” And he further stated that the statute of Anne “ did not remove any difficulty in that respect.” Littledale, J., said that “the con-cilium is the usual modé of demurring in such cases.”

The case of The People v. The President and Trustees of Brooklyn, 13 Wend., 130, arose in the state of New York and was decided by the Court for the Correction of Errors in that state. The relators obtained an alternative mandamus' from the Supreme Court against the defendants, requiring them to cause a report which had been made by certain commissioners of estimate and assessment in reference to the opening of a street, to be filed in the office of the clerk of King’s County or to show cause to the contrary. On the coming in of the return the relators, instead of pleading thereto or putting in' a demurrer, as under the New York statutes they might, applied' by motion for a peremptory mandamus, which the court denied. The relators thereupon sued out a writ of error, and brought the record before the Court of Errors for revision; but the court dismissed the writ. The chancellor, in giving the reasons of the court for thus-disposing of the case, said that he had not considered it necessary to examine the case upon its merits, having arrived at the conclusion that no writ of error lay upon the granting or refusing a mandamus upon a mere motion, where no plea or demurrer to the return had been filed.

In all of the cases referred to, except-the" last, the proceedings were regulated and controlled by the rules of the English common law. The prosecutor was not allowed by those rules to demur to the return if he conceived it te be insufficient in law, or traverse the allegations contained in it if he' knew them to be false; nor was he permitted to plead to the return-in any. form whatever. If he wished tó test the validity or sufficiency of tlie return in point of law, he could do so only by an application to the court that it be quashed, or, by objecting to it on the ground of its insufficiency and moving for a concilium, have the questions argued and determined. In either form of proceeding, if it appeared to the court that the return was insufficient in law, a peremptory mandamus was awarded; but if sufficient in law though false in fact, the proceedings by mandamus were suspended, and the prosecutor had no other recourse but to bring an action on the case against the defendant for a false return, though if he succeeded in that action a peremptory mandamus went as in cases where the return was held to be insufficient. The King v. The Mayor and Aldermen of London, 3 Barn. & Ad., 255. The award in every such case, being made upon motion and not upon issue joined, either of law or of fact, was considered by the courts to be a rule merely and not a formal judgment. And upon that ground, mainly, it was held in the cases cited that a writ of error would not lie.

• These rules of proceeding were essentially modified in England in 1711 by the statute known as the statute of Anne. The effect of that statute was to assimilate the proceedings in cases by mandamus to ordinary actions at law, the prosecutor setting forth his right or cause of action in certain formal modes, to which the defendant set up his defence by way of return, the prosecutor being then at liberty to plead to or traverse the return. 3 Bla. Comm., 265. Such further proceedings were then authorized as might have been had at common law if the prosecutor or relator had brought his action on the case for a false return. But the statute did not abrogate the common law rules of proceeding, or, according to the interpretation it received from the English courts, authorize the prosecutor or relator to test the validity of the return by way of demurrer. The King v. The Mayor and Aldermen of London, supra; High on Extra. Rem., §§ 490, 491. If, however, the prosecutor .or relator pleaded to or traversed the return, and, upon issue joined, judgment, was rendered in his favor, the defendant was entitled to a writ of error to review the judgment. The King v. Dean and Chapter of Trinity Chapel in Dublin, supra.

This summary method of testing the validity or sufficiency of a return to an alternative mandamus provided by the common law never received the sanction of the courts or was otherwise incorporated into the jurisprudence of this state. The first proceeding of which our reports furnish any account was had before the Superior Court sitting at Litchfield in 1788. An alternative mandamus had been issued to the town clerk of the town of Litchfield to record a deed which he had refused to record, and he had made his return to the writ. The court was thereupon requested to direct what should be the rule of proceeding in trying the sufficiency of the return—whether the rule provided by the common law as it stood before the statute of Anne, or that statute. And the •court determined that the statute should be the rule of proceeding. Strong's case, Kirby, 345. No record of this case was made by the clerk of the court in which it was commenced, (the contest having been settled without the trial of the return, 1 Sw. System, 99,) and the original papers have been taken from the files of the court and cannot be found, But it is apparent from the report of the case that the court was of opinion that the proper mode of testing the sufficiency of the return under the provisions of the statute of Anne, was, not by a motion to quash or a motion for a concilium, but by a substantial demurrer. A similar opinion was expressed by the Supreme Court of the state of New York in the case of The People v. Champion et al., 16 Johns., 61. That was a proceeding by mandamus to compel certain commissioners to lay out and establish a highway. The commissioners made a return to the alternative writ and there was a demurrer to the return. The statute under which the proceeding was instituted was, in respect to the form of the pleadings, like the statute of Anne. Counsel for the defendants objected that it was irregular for the relator to demur to the return. But the court directed the demurrer to be argued, and after argument held that the statute authorized the party prose-; cuting to demur to the return. Spencer, J., in giving the opinion of the court, said: “We ought to encourage and promote this method of testing the validity of a return, for if either party is dissatisfied with the judgment of the court he has his remedy on the record by a writ of error.”

• The rule of proceeding adopted in Strong's case continued to be the rule in like cases until 1821, when the present statute, except so much of it as gives jurisdiction in mandamus cases to the Courts of Common Pleas and the District Court, was enacted. Since that time the statute has furnished the rule of proceeding; and while it directs the courts' upon which it confers jurisdiction to issue writs of mandamus, to proceed therein and render judgment according to the course of the common law, it has been uniformly and I think properly construed to authorize the prosecutor or relator to test the validity or sufficiency of a return by way of demurrer; and the practice, so far as I have been able to obtain informa^ tion respecting it, has been in harmony with that construction. The court below, therefore, properly declined to entertain the motion of the State’s Attorney to quash the return to the alternative writ or for a concilium, and directed him to answer further; and the Attorney having, in compliance with that direction, made further answer in the form of a substantial demurrer to the return, the peremptory mandamus was awarded by a formal judgment upon the demurrer. On such a judgment, the authorities all agree that a writ of error will lie. :

But it is insisted by the defendant in error that the granting or refusing of a writ of mandamus is a matter resting in the sound discretion of the court, and that the exercise of that discretion is not the subject of review on a writ of error. It is undoubtedly a correct general proposition that the exei'eise of the jurisdiction to grant writs of mandamus rests to a considerable extent in the sound discretion of the court; and that where in the exercise of such a discretion the writ is refused, the judgment of refusal will not be reviewed oh error. But I am not prepared to hold that where the writ is granted in a case in which the court might in its discretion-have refused if, a revision of the legal question will he prej eluded. 1 Redf. on Railw., note 1, page 660. However this may he, no doubt can exist that in a case like the one in the court below, where the writ is applied for to enforce an act of the legislature for the public benefit and there is no other adequate remedy for its enforcement, the state or its attorney is entitled to the writ as of right, and there is no discretion in the court to refuse it. Tapping on Mandamus, 54, 56, 288; 2 Dil. on Mun. Corp., § 695.

Another point made by the defendant in error is, that the judgmenUbelow was, practically and for the purposes of the law, a judgment of this court and not a judgment of the Superior Court, within the meaning of the statute allowing writs of error. The decisions in the cases of Smith v. Lewis, 26 Conn., 119, Nichols v. City of Bridgeport, 27 id., 459, and Fowler v. Bishop, 32 id., 199, have established the rule that where a case has been reserved for the advice of this court, and the advice has been given, and judgment has been rendered in accordance with such advice by the court making the reservation, this court will not afterwards, upon proceedings in error, consider questions on which the party moving in error was fully heard or had an opportunity to be heard when the case was before this court upon the reservation. “It is quite obvious,” says Storrs, C. J., in giving the reasons for the decision in Nichols v. City of Bridgeport, “ that the allowance of a practice by which questions decided by us on a reservation of them for our opinion, might be afterwards raised again on a writ of error brought before us, would do away with the great advantages of such reservations, and render them not merely useless but very burdensome, as to both the increased expense and delay of the litigation. And there is not only no, occasion for reviewing the questions decided by us on such reservations, since those questions, when so reserved, although brought before us informally, are considered and examined as deliberately and carefully as if they we're presented by writ of error, but the allowance of such review would give the complaining party the benefit of a re-argument, to which he ought not to be entitled unless for special cause apparent to the court, and which it is in his power to obtain by a regular application for that purpose, if sufficient reasons for it be shown.”

In practice this rule does no injustice to the parties interested, as it places them in no worse situation than they would have been if the judgment had been rendered originally by the lower court and afterwards affirmed on error by this court. For where, in a case reserved, the validity of a treaty or statute of the United States is drawn in question and the judgment is against its validity, or where there is drawn in question the validity of a statute of this state on tlie ground of its being repugnant to the constitution, treaties or laws of the United States and the judgment is in favor of its validity, or where some title, right, privilege or immunity is claimed under the constitution or some treaty or statute of the United States and the judgment is against the title, right, privilege or immunity set up or claimed, the unsuccessful party is never refused the privilege of bringing a writ of error to this court and having the judgment, without re-argument or further hearing, affirmed. He may then, if he chooses, remove the record to the Supreme Court of the United States and have the judgment re-examined by that tribunal. U. S. Statutes at Large, 132, § 709.

As the statute upon which the proceedings in the court below were founded, was drawn in question on the ground of its being in violation of the constitution of the United States, and the judgment was in favor of its validity, jurisdiction of the present case is entertained by this court for the purpose of affirming the judgment, according to the usage and practice in similar cases.

. Upon these grounds the motion of the defendant in error to strike the case from the docket is denied, and the judgment of the Superior Court is affirmed.

In this opinion the other judges concurred.

Judge Hovey of the Superior Court sat in the place of Judge Gbangek, in this and the two following cases.