Bradley v. City of New Haven ( 1916 )

The complaint alleges that the plaintiff is the owner of a lot of land in the city of New Haven bounded by Middletown Avenue, Ferry Street, Bailey Street and Rowe Street; that in the month of April, 1912, the board of aldermen of the city of New Haven passed an order, afterward approved by the mayor, that the director of public works cause a sewer to be constructed in Bailey Street between Ferry Street and Rowe Street, of the proper size and materials, with all necessary manholes, culverts, basins, etc.; that the director of public works afterward, professing to proceed under this order, constructed a sewer in Bailey Street in front of and adjacent to the plaintiff's property; that afterward the board of assessment assessed benefits against the plaintiff and in favor of the city of $550 over and above all damages, which assessment was approved, and that the plaintiff was aggrieved by the order of the board of aldermen approving and accepting the assessment, because that board had no authority to delegate to the director of public works the power to determine the proper size and material of the proposed sewer and what manholes, culverts, basins, etc., were necessary thereto, and because, for that reason, the acts of the director of public works in constructing the sewer, and all acts connected with the assessment of benefits, wereultra vires and void.

It is to be noticed that the objection to the assessment is because the action of the board of aldermen in directing the construction of the sewer was without authority and so invalid, because it was left to the director of public works to determine the size and materials of the sewer. Among the fourteen reasons of demurrer assigned, only the sixth need be referred to, which is that the complaint does not allege that the board of aldermen delegated to the director of public works any of the powers vested by law in the board of aldermen.

It is the appellant's contention that the determination of the size of a sewer and of the materials for its construction is a legislative function which, by the city charter, the legislature has delegated to the board of aldermen, who are given the power to order and lay out streets, sewers, etc., and that a legislative duty cannot be delegated by the delegatee. For our present purposes this may be conceded. The complaint does not allege that the board of aldermen has delegated or attempted to delegate its powers to the director of public works. The plaintiff assumes that the order which he has set out in the complaint is an attempted delegation of its governmental function. But the charter provides [13 Special Laws, p. 429, § 137(d)] that the board of aldermen may, by ordinance, provide for the laying out and making sewers. Municipalities at the present day ordinarily adopt a comprehensive scheme of sewerage for the entire city, wherein the location and size of the trunk line sewers and of the laterals are designated, and where the materials proper to be used in the construction of sewers of the different sizes may be designated. Under the charter the board of aldermen have authority to cause such a system of sewers for the city to be laid out, and to approve and adopt them by an ordinance, so that when the necessity for a new sewer, or the extension of an old one, arises, the board may simply order, as they did in this case, the director of public works to build it of the proper size and materials. For aught that appears in the complaint precisely this may have been done by the board of aldermen. From the recent case of Bassett v. NewHaven, 76 Conn. 70, 55 A. 579, in this court, we take judicial notice that such a general sewer system for New Haven was adopted and followed.

It is apparent, therefore, that the plaintiff's complaint does not show an attempted delegation of the legislative duties of the board of aldermen to the director of public works, and that what he and the board of assessment did pursuant to the order of the board of aldermen, set forth in the complaint, was outside of these powers. The demurrer to the complaint was properly sustained.

There is no error.

In this opinion PRENTICE, C. J., RORABACK and BEACH, Js., concurred.