Connecticut. Supreme Court of Errors.

Connecticut reports: containing cases argued and determined in ..., Volume 58 online

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made of it and to which it was adapted, the acts of the
court of common council and voters of the city which cul-
minated in the order of demolition, and the conduct of Lake
in carrying into effect the order. The complaint asks for
an injunction restraining the execution of the order and for
damages against the defendant Lake for the destruction of
the building as directed. Sundry citizens and tax-payers of
the city are plaintiffs, and the city, Lake, and the county of
New Haven are defendants. No appearance is made on behalf
of the county. The city and Lake demur to the allegations
of the complaint. . Various issues are thus raised. Some of
these are not discussed in the plaintiffs' brief, and are appa-
rently waived. The remainder may be conveniently grouped
and discussed as counsel for the plaintiff groups and dis-
cusses them.

The plaintiffs seek relief by virtue of an alleged interest
of the county in the building. The objections to granting
relief upon this ground are manifest. The plaintiffs are in
court only as citizens and tax-payers of the city of New
Haven. Whatever their relations to the county and to the
county treasury may be, they have chosen, and by the alle-
gations of their complaint established, their status in court
as " citizens and tax-payers of the city."

Furthermore, the complaint is singularly silent as to any
present interest in or threatened damage to the county. The
only allegation of county interest is that contained in the
sixth paragraph, which sets out that the city and county
prior to 1833 together contributed $10,000 towards the con-
struction of the building, and that the county thereby ac-
quired an equitable interest therein. Whether or not that
interest has continued to exist during the fifty and more
years which have elapsed does not appear. That the county
has during the last half century had any beneficial interest
in or use of the building is not stated. That any damage
to the county, or to the plaintiffs as the champions of its
interests, was threatened by the demolition of the building, is



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MARCH, 1890. 457



Whitney v. City of New Haven.



not charged. In fact paragraph 46, which contains the only
allegation of threatened damage upon which the action
rests, recites only a damage threatened to the plaintiffs as
tax-payers of the city.

Again, by statute there exist officials whose duty it is to
protect the rights and interests of the county, and a way is
provided for actions to be brought to enforce these rights.
We fail to discover whence arises the right of these plain t -
ifft^ to come forward and maintain this action in the county's
behalf and make the county itself a defendant.

An examination of the complaint makes it apparent that
the proceedings were instituted for the relief of the plaint-
iffs as citizens and tax-payers of the city of New Haven
and by reason of city rights supposed to have been invaded.
To that end the complaint was framed and in that aspect its
claims are to be judged and determined.

Regarding the complaint as an effort to protect city rights,
the first question which arises is as to the power of courts to
intervene to restrain the execution of the orders of bodies
like courts of common council. The law is well settled.
They may interfere to prevent an illegal exercise of power.
They may enjoin the exercise of power in an informal or
illegal manner. "When however such bodies are acting
within the limits of the powers conferred upon them, and in
due form of law, the right of courts to supervise, review or
restrain is exceedingly limited. Courts of common council
exercise an authority delegated by the General Assen^bly.
This delegation of power carries with it the corresponding
duty, and vests the delegated body with the right and duty
to exercise the discretion and judgment incidental to the
proper performance of that which is delegated. With the
exercise of discretionary powers courts rarely and only for
grave, reasons interfere. These grave reasons are found only
where fraud, corruption, improper motives or influences,
plain disregard of duty, gross abuse of power, or violation
of law, enter into or characterize the result. Difference in
opinion or judgment is never a sufficient ground for inter-
ference. High on Injunctions, § 785; Dillon's Municipal



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458 MARCH, 1890.



Whitney v. City of New Haven.



Corporations, §§ 94, 832 ; Fellofve$ v. City of New Haven^
44 Conn., 240 ; Dibble v. Town of New Haven, 66 Conn., 199.

The question presented to the court of common council
of New Haven as to the advisability of repairing or demol-
ishing the old state house building was one involving dis-
cretion and judgment. If in attempting to determine the
issue it was acting within the scope of its powers, and was
acting- in legal form, it follows that the Superior Court can-
not supervise or revise its determinations and acts, unless
some of the grave reasons above enumerated exist to justify
the interference.

The court of common council was plainly acting within its
powers. The charter confers upon it the right ** to manage,
regulate and control the propert3% real and personal, of the
citj\" Whether it was acting in due form we shall have
occasion to see later. Assuming for the present that it was,
we have only to look at the complaint to ascertain what it
discloses of a state of facts warranting judicial intervention.
In paragraph 32 we find an allegation tiiat the action of the
council was a " gross breach of trust." If this conclusion
were justified by the facts, which are fully set up, the plaint-
iffs would doubtless be entitled to relief. But this single
allegation of a conclusion is not sufficient to save the com-
plaint if the facts from which it was drawn and which are
not to be disregarded do not support the conclusion. Hew-
ison V. City of New Haven, 34 Conn., 138.

Examining these facts we not only find nothing to justify
the conclusion that the decision to remove the building was
a gross breach of trust, but much to negative that conclu-
sion. The plaintiffs' statement of the issues presented by
the state house problem discloses that it was one upon which
reasonable and fair minded men might well disagree. The
question as to whether the building should be repaired or
demolished was one which involved many considerations.
The complaint shows that the issue involved fair and by no
means plain questions of economy and wise administration.
The true policy was not so plain as that only a knave could
disregard it, or so manifest as to render either a decision to



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MARCH, 1890. 459



Whitney v. City of New Haven.



repair or to demolish a palpable or gross disregard of the
city's interest. The court of common council in the perform-
ance of its duty WHS called upon to meet the issue presented
and to determine what should be done. In reaching its
conclusion it is not alleged that improper motives, undue
influences, or a disregard of duty, moved or actuated any
member of the council. For all that appears the decision
was fairly and honestly reached. It must therefore stand
unless there exist other reasons to render it inoperative or
illegal.

One such other reason it is said exists, because the action
of the court of common council was not in accord with an
expression of the will of the legal voters of the city given
in 1887, when the question was by a former council sub-
mitted to them. We have already observed that the Gen-
eral Assembly had by the charter of the city cast upon the
court of common council the power and duty of determin-
ing the policy and conduct of the city as to this building.
This power and duty were exclusive. The voters of the
city had no share in their exercise. Neither could the court
of common council divest itself of them or shift the burden
of them to others. Any attempt to do so would have
amounted to a breach of the trust confided to it. 1 Dil-
lon's Municipal Corporations, § 96.

If the common council chose for its information to learn
the wishes of the people it was perhaps not improper that it
should do so. In doing so it might make personal inquiry.
It might obtain an expression of the legal voters by ballot.
Or it might ask the whole population to express their views.
But after all was done and learned it must remain for it to
decide and act. It must decide and act upon its own best
judgment. The expressed will of the people could no|
bind or control. The vote of December, 1887, was nothing
more than an expression of the preferences of those who
voted. It had no binding force upon anybody. It was ex-
pression, not action ; and the court of common council had
the right, and it was its duty, to regard or disregard it as
its own judgment in the premises dictated. So far as action



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460 MARCH, 1890.



Whitney v. City of New Haven.



upon the question at issue was concerned it was mere sur-
plusage.

It is again said that the order of the court of common
council was not legally adopted for the reasons — ^Ist, that
the resolution was not referred to a committee ; and 2d,
that the meeting of the board of councilmen was not suflS-
ciently warned to enable it to act upon the subject.

The city charter provides that " no vote shall be taken
upon any by-law, ordinance, resolution or other measure in
either body, until the same shall have been referred to* and
reported upon by an appropriate committee, or one of the
standing boards of commissioners, unless by unanimous
consent." . It appears from the complaint that " the whole
matter of the state house question " was referred to a spe-
cial committee raised for the purpose, and that the order as
finally adopted was reported in totidem verbis by this com-
mittee, with an accompanying report recommending its pass-
age. The whole subject matter in controversy was referred,
and the identical resolution originated and recommended.
Surely the charter provision could require nothing more.

The charter authorizes the court of common council to
provide by ordinance for the warning of its meetings. Tlie
method so ordained is by an order of the mayor directed to
the city sheriff requiring him to warn the members of the
meeting. Regular meetings are provided for at stated
times. Special meetings may be convened by the mayor at
his pleasure. This act of the mrfyor and sheriflE is purely
one of notice. No provision of charter or ordinance requires
information to be given of the matters to be cojisidered.
No statute or charter provision restricts the scope of their
assembled authority to specified subjects. Their powers are
Ifonferred by law. They neither grow out of the warning
nor depend upon its language for their scope. The mayor^
is endowed with no such power to restrict or guide their ac-
tion as the rule contended for would confer upon him. He
is given the power to perform the purely ministerial act
of convening the two bodies. When they are assembled
their authority is not of his dictation. They are clothed with



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MARCH, 1890. 461



Whitney v. City of New Haven.



all that which the charter has conferred. The familiar rule
of notice as applicable to meetings of towns and communi-
ties is one prescribed by statute. It has no application to
meetings of governmental representative bodies like courts
of common council. Their status and right to act are more
allied to those of the governing bodies of private corporations
and of the General Assembly itself and are governed by the
same rules. Cooley's Constitutional Limitations, p. 16t5 ;
Savings Bank v. Davis^ 8 Conn., 200 ; Westbrook's Appeal
from R. R. Comrs,^ 67 Conn., 95.

The meeting of the board of councilmen at which the or-
der of removal was passed was a special one. The mayor's
order convening it contained the statement that it was called
for the purpose of electing a city treasurer. This portion of
the order under the principles we have stated was mere sur-
plusage. If it was intended by it to restrict the action of
the meeting it was futile. If its purpose was to advise mem-
bers of the special occasion which prompted the call of a
special meeting or to inform them of some matter of peculiar
importance or interest which might come up for action, it
may have served this useful purpose. It certainly served
no other.

It is further claimed that this order was illegal because
it involved an illegal expenditure. The charter calls for an
annual classified appropriation by the court of common
council of moneys deemed necessary to defray the expenses
of the city in its various departments and for its various
purposes for the year next ensuing. It is forbidden that any
city or department officer or board exceed these appropria-
tions. This prohibition is plainly for the protection of the
city against its officers and agents. Its purpose was not to
debar the city itself from action upon subjects not foreseen
when the annual appropriations are made, and from expen-
ditures which may be involved in such action. The office
of the appropriations is not to restrict the action of the city
within the limits prescribed by them, but to restrain the
action of its servants and the language is carefully chosen
to this end.



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462 MARCH, 1890.



Whitney «. City of New Haven.



Section 378 of the General Statutes is relied upon as estab-
lishing the illegality of the order. This section provides for
the punishment of an agent or executive officer of any com-
munity who shall wilfully authorize or contract for the ex-
penditure of any money or the creation of any debt for any
purpose in excess of appropriations. This statute it will be
noticed carefully limits its application to cases where spe-
cific appropriations have been made for a particular purpose.
It is not pertinent to the circumstances under consideration.
Here no appropriation was made. There was therefore
none to exceed. The object of the statute is clear and its
language explicit. Its purpose was to limit public officers
and agents in their expenditures to appropriations. Its aim,
like that of the charter provision cited above, was to protect
public corporations from the lavishness of their officials. It
did not aim to, and does not, prohibit communities from au-
thorizing work to be done or expenditures incurred with-
out an antecedent specific appropriation. If a community
chooses to make an appropriation and thus protect itself, the
law then comes to its aid and punishes him who wilfully dis-
regards the limit fixed.

It is objected to the order that it contains an unlawful
delegation of power. The city auditor was directed to re-
move the building. It is said that the charter limited the
city in its execution of the order to the agency of the board
of public works. In the absence of restrictive words in the
charter it is plain that the council in this purely ministerial
matter could have acted through its agent, and that it was
free to choose the agent. But it is contended that the court
of common council was restricted in its choice of agency,
since the charter provided that the board of public works
should execute all orders of the court of common council in
reference to the streets, sidewalks, crosswalks, sewers, gutters
and parks of the city, and in reference to the laying out and
construction of new ones, and since the building in question
chanced to be located upon a citj' park. We cannot accede to
this claim. Plainly it was not intended to confer upon the
board of public works authority over city buildings. No



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MARCH, 1890. 463



Whitney v. City of New Haven.



jurisdiction of that nature is anywhere in terms conferred.
Other public buildings are not by the charter placed under
the care of this board. If this one formed an exception to
the rule, it was solely by reason of the mere fact of location.
No words, intentions or analogies contained in or derivable
from the charter furnish any foundation for the exception.
If this board was the only agency competent to execute an
order of removal, it was likewise the only one competent to
execute any order with reference to the building. Plainly
we think the term " park " in this connection was not in-
tended, and should not be construed to extend, to embrace
any public building which may be located upon one. The
order in question did not relate to the park as such. It re-
lated to a city building which chanced to be located upon it,
and which may fairly be said not to have been comprehended
in the subject matter of the exclusive jurisdiction of the
board of public works.

The record discloses a motion on the part of the defend-
ants to require the plaintiffs to amend their complaint by
setting out at length the report of the committee referred
to in paragraph 24 of the complaint, and this court is asked
to advise the Superior Court whether the motion ought to be
granted. In deciding the issues presented we have not
deemed the contents of the proposed amendment material.
Furthermore, we fail to discover upon what ground the
plaintiffs should be made to thus amplify their complaint.

The Superior Court is therefore advised that the motion
to amplify the complaint ought to be denied, and that the
complaint is insufficient.



In this opinion the other judges concurred.



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464 MARCH, 1890.



63296



Beach's Appeal from Commissioners.



58 464

60 407

68 4M

62 32

^ 4fl4 Charles M. Beach's Appeal pbom Commissioxebs.



Hartford Dist, Oct. T., 1889. Andrews, C. J., Cabpbnteb, Pabdek,
Looms and Fenn, Js.

C by a written contract agreed to deliver to a manufacturing company a
quantity of machinery, of the agreed value of $12,456, for which the
company was to give him its promissory note for that sum payalile
eight months after date; the company to set up the machinery in its
mill, to keep it in good order and insured for C« benefit, and to hold
it as the property of C until the note and its renewals had been fully
paid, when it was to be sold to and become the property of the com-
pany; and on default of payment, or if it was not kept in good order
and insured, C to have the right at any time to take possession of it
and remove it as his own property; whatever had then been paid to go
for the use of the machinery and the notes to be delivered up. Under
this contract an absolute note was given by the company for the price
at eight months, and when the note fell due another was given at six
mouths for the same sum, with a payment of the interest in advance.
Held—

1. That the contract must be construed as an absolute promise on the part

of the company to pay for the machinery at the expiration of the eight
months credit agreed upon.

2. That the right of the company under the contract to take possession of

the machinery and use it until default and the right to acquire the

legal title by the payment of the note, constituted a good consideration

for the contract.
8. Tliat there was no option left to the company to return the machinery

and have the note surrendered; the option in the matter resting with

C alone.
Wliether C, having elected to enforce his claim upon the note, could at the

same time retain his right to retake the machinery if the note was not

paid : — Qucere.

[Argued October 1st, 1889— decided February 7th, 1890.]

Appeal from the doings of the commissioners on the
assigned insolvent estate of the Home Woolen Mills Com-
pany, in allowing a claim presented against the estate in
favor of Mary C. Crompton, taken by the appellant as a
creditor of the estate ; brought to the Superior Court in
Hartford County and heard before F. B. HalU J^ The fol-
lowing facts were found by the court.

The Home Woolen Mills Company, a corporation organ-



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MARCH, 1890. 465



Beach's Appeal from Commissioners.



ized under the joint stock law of this state and located in
Hartford, was carrying on business prior to July, 1887, at
Beacon Falls, in this state.

George Crompton of Worcester, Massachusetts, was a
manufacturer of looms. In July, 1886, the company and
Crompton executed the following articles of agreement in
duplicate, which were dated March 8d, 1886, and embodied
the terms of an agreement made by the parties at that time.

" This memorandum of an agreement made this third day
of March, 1886, between George Crompton, of the first
part, and the Home Woolen Co., Charles M. Beach, treas-
urer, of the second part.

" Whereas the said Crompton of the first part agrees to
deliver to the said party of the second pai-t certain arti-
cles of machinery, to wit: thirty broad Crompton "1883"
fancy looms (twenty-eight of which are single beam looms,
and two are double beam looms) and fixtures thereto be-
longing, amounting to $12,466.69, and the party of the
second part agrees to give the party of the first part its
promissory note date^ the average shipping date of the
looms, and payable eight months from its date, for $12,456,69.

" It is hereby agreed by the said parties, that the party of
the second part shall be permitted to take the said property
into their possession, and the same to take to and set up in
the mill occupied by them in Beacon Falls, agi'ceing to
keep the same in good order, and also to keep the same
insured for the full cost of the same for the benefit of the
party of the first part, and to hold the said machinery as
the property of the party of the first part until the above
note or renewals thereof have been fully paid, according to
the tenor thereof, when the machinery above named shall
be sold to and become the property of the party of the
second part.

" And the party of the first part is hereby bound to sell
and relinquish his claim to said property upon payment of
the said note or renewals thereof, and does agree to consider
the same as sold and delivered when said note or renewals
thereof are paid.

Vol. Lvm. — 80



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466 MARCH, 1890.



Beach's Appeal from Commisslonen.



" And it is further agreed that, upon default of the payment
of the said note or renewals thereof when the same shall
become due, as also in default of said machinery being kept
in good order and insured as above provided, the party of
the first part shall have the right at any time to resume
possession of the machinery, and to enter the premises and
remove the same as his own property. And if any portion
of said note or renewals thereof shall remain unpaid when
possession shall be so taken by the party of the fii-st part or
his authorized agent, then the amount wliich may have been
paid shall be for the use of said machinery while in posses-
sion of the party of the second part, and said notes shall
then be cancelled and given up. Witness the hands and
seals of the parties aforesaid.

George Crompton. [l. s.]

Chas. M. Beach, Treamrer. [l. s.]"

The particular question in dispute is upon this contract.

In pursuance of its terms an eight months' note was
given to Crompton by the company for the amount of
$12,456.69, Prior to the maturity of this note Crompton
died, but his administratrix, his widow, Mary Crompton,
took a renewal of the note for six months. The renewal
note was as follows :

"$12,456.69. Hartford, Conn., January 15, 1887.

"Six months after date, for value received, the Home
Woolen Mills Company promises to pay to the order of
Mary Crompton, administratrix, twelve thousand four hun-
dred fifty-six and ^^^^ doUai-s, at Ihe office of the Crompton
Looms Works, Worcester. (Signed), Chas. M. Beach,
Trea^urer,^^

Tlie interest upon this note was paid in advance.

About the time when this note matured in July, 1887,
the Home Woolen Mills Company ceased to manufacture
goods, and when the note matured made default of payment.

After the default the note was indorsed and delivered by
Mary C. Crompton as administratrix to J. A. Ware, by
whom it was indorsed and delivered to Mary C. Crompton,



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MARCH, 1890, 467



Beach's Appeal from Commissioners.



and a suit was brought upon it by her in July, 1887, and was
secured by attachment of the company's real estate.

After the attachment the company, through its attorney,
wrote a letter dated September 12th, 1887, to the attorneys
for Mrs. Crompton, and ofifered ten per cent, of the price of
the looms for rent for their use. The oflfer and the tender as
contained in the letter were declined. The company there-



Online LibraryConnecticut. Supreme Court of ErrorsConnecticut reports: containing cases argued and determined in ..., Volume 58 → online text (page 42 of 60)