Peck v. Booth

42 Conn. 271

• Court: Supreme Court of Connecticut
• Decided: April 15, 1875
• Status: Published

Opinion

Carpenter, J.

It is familiar law that he who would invoke the aid of a writ of mandamus must have a clear and well defined legal right, and must bo without any other adequate remedy.

The plaintiff, in common with nineteen others, desired a repeal of the charter of the borough of West Haven. They requested the defendants, the borough officers, to call a meeting of the freemen to take action on resolutions there to be offered tending to such a repeal. The borough officers refusing, this application is made, for a mandamus to compel them to call the meeting.

What is the precise legal right which the plaintiff seeks to enforce ? He and his associates have a right undoubtedly to prefer their petition for a repeal of the charter, and to have that question tried by the proper tribunal. But the borough .meeting is not the proper tribunal to pass upon that question. That therefore is not the right they are seeking to enforce, • as they may try that question before tire legislature without .the intervention of a borough meeting.

It may be claimed that they desire the action of such a meeting to be used in evidence; that it will be important as showing what ai’e the views and wishes of a majority of the freemen. If the repeal could be effected in no other way, or if there was no other method of ascertaining the views and wishes of the freemen, there might be some force in that' claim. But, as it is, they have not a clear legal right to that precise evidence, as the legislature may find abundant reason for repealing the charter, or refusing to repeal it, without reference to the wishes of the freemen ; and if the state of public sentiment becomes essential, it may be ascertained, more accurately perhaps, and with quite as little trouble in the aggregate, by petition and remonstrance. There is no necessity therefore for the proposed meeting in order to enforce their right to try the question of repeal.

But the all important right still remains to be considered ; and that is, the right of petition. The right of the plaintiff to petition the borough officers to call a meeting of the freemen for any lawful purpose is unquestionable; and if the petition is signed by the requisite number, the duty of the officers to comply with the request is equally clear. We suppose the object of this application is to vindicate that right and enforce that duty. But here the plaintiff encounters another difficulty. That is a right which he holds in common with every other freeman of the borough. The duty of the officers is owing, not to the plaintiff alone, but to all. The damage which he has sustained by a non-performance of that duty is shared by all, and the remedy is open equally to all. That remedy is not a suit in his own name, but a suit instituted by, and in the name of, the State. This point was expressly decided in Lyon v. Rice, 41 Conn., 245. That case is decisive of this.

We advise the Superior Court that the application should be dismissed.

In this opinion the other judges concurred; except Phelps, J., who did not sit.