Woodruff v. New York & New England Railroad , 59 Conn. 63 ( 1890 )

Carpenter, J.

(dissenting.) I am clearly of the opinion that that portion of the order which is sought to be enforced by this suit is not within the jurisdiction of the commissioners. The order is divisible. It relates to tracks on Asylum street, on Church street, and on the defendant’s own land. It is not denied that they had jurisdiction to order the tracks removed from Asylum street; it is denied that they had any power to order the'other tracks removed. When I speak of the order, it will be understood that I mean the order as applied to the other tracks alone; and when I speak of tracks, that I mean those other tracks only, as they are the only ones now in controversy.

The question of authority is raised by the motion to quash, which should have been granted, for the writ fails to show a primd facie case, inasmuch as no facts are alleged which bring the tracks within the power conferred upon the commissioners ; and it appears by the statute, which by reference is made a part of the writ, that the authority granted did not embrace them. This question is distinctly raised by paragraph fourteen of the motion to quash, and the third reason of appeal assigns the denial of that motion as one of the errors complained of; so that sustaining the demurrer on technical questions of pleading does not meet and dispose of this question. The error of the court, if there was one, still remains.

What was the object or purpose of the order ? What reason is now given for removing the tracks? The reason for removing the tracks from Asylum street is apparent. The commissioners tell us in the order that the completion of the improvement requires it. The order seems to give the same reason for removing the other tracks; but manifestly that cannot be, for the improvement has been completed for more than a year and the tracks are not removed. If we may speculate, we may suppose that the order to remove the tracks from Church street had for its object the removal of another grade crossing. But the commissioners do not saj' so. On the contrary they give another and quite different reason. As to the tracks not on any street, hut on the defendant’s own land, what reason has been or can be given for removing them ? The record is silent; the plaintiffs’ attorneys are silent; the opinion of the court is silent; and I am compelled to be silent, for I am unable to imagine a possible reason for it.

I refer to these things merely for the purpose of calling attention to a peculiarity of this case; a large portion of what is required to be done is without any apparent reason.

If we look at the writ we find that it is alleged that the defendant has and now maintains certain of its surface tracks within one half mile of Asylum street, and within three hundred feet of the center line of the tracks; that the acts of the legislature authorized the commission to order their removal; that it has ordered their removal; and that the defendant refuses to obey the order. There is no allegation that their removal is necessary to the completion of the Asylum street improvement, or to the separation of grades at Church street, or that they in any wise affect the commissioners or any duty devolving upon them.

Surely they would not have us infer that they ordered their removal simply because they believed that they had the power to do so. But I insist that they have no such power. The power contended for is special, unusual, and extraordinary; in the language of the plaintiffs’ brief, “ such delegations of power as are not to be found elsewhere iu our public or private laws.” Such power is not to be presumed or inferred. If it exists at all it is because it is granted by the legislature, either expressly or by necessary implication. To this proposition all will agree. If granted it is in the statute in express terms or clearly included in some general grant of power. One clause in the act—“ may require any or all of the present tracks within said limits to be taken up and removed,” if detached from its connection and taken in an unqualified sense, apparently justifies the action of the commissioners. Thus interpreted it grants arbitrary and despotic power to order the removal of every track on either road within one half mile of Asylum street, with or without reason. It is not claimed that the legislature intended any such grant of power. It is a power which the legislature itself does not possess. It is not only against natural right, but is clearly obnoxious to the federal and state constitutions. Obviously that clause cannot be taken in an unqualified sense. Absolute in terms, it is nevertheless limited and qualified by the context and the subject matter. There are four distinct grants of power in the same sentence, of which that is the last. The others are (1) to carry the railroad over the street, (2) to change the grade of the street, (3) to order new lines of railroad. The last three are subsidiary to the first; the second expressly so— “ to the end aforesaid.” The sense requires that the third and fourth should be in like manner qualified. There can be no other rational construction. I come then to the other branch of the inquiry, is the removal of these tracks essential to the separation of the grades at Asylum street? As before remarked, no fact is alleged showing such necessity, no such fact appears in any part of the record, and I can safety assert that no such fact exists; because the fact is patent that the Asylum street crossing has been abolished, and the street rendered as safe as it can be, for more than a year, and during all that time the tracks in question have been in daily use. Counsel for the plaintiffs do not in their brief or argument specify any object or purpose outside of Asylum street which is claimed as an incident to the separation of the grades at that street. In discussing the question of authority they speak of certain powers expressly conferred ; and then add vaguely, in their own language—-language not found in the statute—“and guard the public safety and convenience in every direct and incidental thing.” Again they say:—“ It is fair to notice that the removal of these tracks by the two railroad companies, leaving the viaduct only for the exclusive use of the railroads, and opening the approaches to the station and the highways free to carriage use, is not only incidentally, but integrally, included in the problem committed by the state to the commission.” Now this may have some application to the improvement on Asylum street, but it is not explicitly claimed that it applies to anything else, although the brief enlarges upon the supposed danger at Church street, while the record is silent on that subject. Counsel then fall back upon the express authority in the statute, as follows:—■“ The act gives the commission complete jurisdiction over the railroads for a distance not exceeding one half a mile each side of Asylum street, and within three hundred feet of the center line of the present tracks of the railroads, and may require any and, all of the present tracks to he taken up and removed.” The italics are theirs. That is the only part of the statute which can be made to justify the order as now sought to be enforced; and that, as I have shown, can only be done bjr taking it in an absolute sense, which is clearly contrary to the intention of the legislature. Apparently not satisfed with the argument as it then stood, reference is made to the finding of the commission as expressed in the order, “that the completion of said improvement as heretofore ordered, the carrying out of the design and instructions of the legislative acts creating and regulating this board, and public convenience and necessity all require,” etc., as conclusive. Conclusive of what? If by that is meant that the finding of a fact within its jurisdiction is conclusive as to that fact, I agree with them. Here again I desire to call attention to the divisible nature of this order. The commission clearly had jurisdiction over the tracks on Asylum street and its finding as to them is a finding of a fact within its jurisdiction. But the question is as to jurisdiction over tracks outside of Asylum street, and over matters not connected with the Asylum street crossing. If such matters are in fact outside of the resolutions under which the commission acted, counsel admit that the finding is not conclusive.

That they are extraneous matters cannot be doubted. The commission did not stultify itself by finding that the Asylum street improvement required the removal of the tracks between Asylum and Church streets; or of the tracks from Church street; and counsel make no such absurd claim directly. But suppose there is an explicit claim and finding to that effect; such finding is of no consequence, for it is a jurisdictional matter and binds no one. Sears v. Terry, 26 Conn., 273. The opinion of the court seems to have gone far beyond the suggestion of counsel. It announces the broad doctrine that “the commission itself establishes its own jurisdiction.” With all deference I think the court confounds things that differ. Jurisdiction is one thing; exercising or assuming to exercise jurisdiction is quite another. The latter presupposes the existence of the former. The former is never the creature of the latter. Jurisdiction is the creature, not of a tribunal, not of any fact which it may find, nor of anything which it may do, but of some superior power. The proposition that the commission established its own jurisdiction assumes that the legislature created the commission with power to determine and define its own jurisdiction; whereas it has done nothing of the kind. It created the commission and prescribed definitely its powers and duties. Hence it is to the acts of the legislature, and not to the acts of the commission, that we are to look for its authority. There is but one way in which the commission can establish its own jurisdiction, and that is by usurpation. Jurisdiction thus established vanishes as soon as it is questioned.

It maj' be claimed that nothing more is meant than that the commission found certain jurisdictional facts which show that it is proper for it to exercise the power conferred. If that is the meaning it is singularly unfortunate that it was not expressed in different language. But assuming that to be so, the inference drawn from it, that the finding is prima facie proof of the fact thus found, and must stand until shown to be untrue, is of no avail; for there is no express finding that the Asylum street improvement requires the removal of the tracks now in question ; and any implication to that effect is effectually disproved by the facts stated in the eleventh paragraph of the return, which are admitted by the demurrer, and which are as follows:—“The new depot at Asylum street was first occupied and used by the defendant on the first day of July, 1889. At the expiration of thirty days from that time the defendant did not have, nor has it at any time since said first day of July had, any surface tracks across or upon said Asylum street, or any such surface tracks anywhere existing within the limits named in said order of December 29th, 1888, as could in any wise affect the safety or convenience of travel upon any railroad or on Asylum street, or as could affect the separation of the grades of the railroad and Asylum street, or the operation of any railroad across Asylum street, or as could in any event have anything to do with the execution of the intent or purposes of the resolutions.” Now if the finding of the commission cannot be regarded as a finding that the removal of all the tracks embraced in the order was essential to the completion of the Asylum street improvement, (and I think it cannot,) then the finding has no bearing upon the case; if it can be so regarded, and that the fact so found is to be taken as true until facts are alleged and proved which show it to be untrue, how, in the face of that portion of the return quoted above, can it be truthfully said that “ no such facts are shown in the return ? ”

But why look to the doings of tire commissioners for their authority? Is it because it is not elsewhere to be found? If conferred by statute that is enough; 'if not, the doings of the commissioners are of no importance. They do not tend to show any implied or incidental power; therefore their finding neither strengthens, nor is it strenghtened by, any argument in support of such power. The argument drawn from the finding must stand or fall by itself. If insufficient, as it clearly is, it is like placing another cipher in a column of ciphers to be added; the result is but a cipher. Resorting to such an argument virtually admits that the power contended for does not otherwise exist, and only serves to betray the weakness of the cause. My conclusion is, (and from that conclusion I can see no escape,) that the power to order the removal of the tracks now in question is not expressly granted in .the statute, is not given in any general grant of power, .and is not given as an incident to the one only purpose of the legislature—the separation of the grades on Asylum street.

Any other conclusion, especially any construction that will justify this proceeding, encounters grave constitutional objections. The theory of the plaintiffs, as disclosed in the writ, is, that the power to order the tracks removed is absolute. That theory seems to have been adopted by the court below and to have received the approval of this court. Thus construed, the literal terms of the statute justify the order; but the order, when enforced, clearly violates the federal and state constitutions. The case shows, (paragraph twelve of the return,) that the “tracks are owned and operated by the defendant as a part of its railroad, are within its location as legally established, and within one hundred feet of the old center line of its location, are all laid upon land owned by the defendant in fee, are necessary for the enjoyment and profitable use by the defendant of the land, and cannot be taken up or removed, as commanded by the order, or as prayed for by the plaintiffs, without doing damage to the defendant in the sum of two hundred thousand dollars.” This too is admitted to be true by the demurrer. The fifth amendment to the constitution of the United. States provides that no person shall “ be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use without just compensation.” The constitution of this state contains the same provision in nearly the same language. Art. 1, sections 9 and 11. It requires no argument to show that this order, when enforced, will deprive this defendant of its property, and that the order is not “ due process of law.” If the action of the commission is attempted to be justified on the ground that the removal of the tracks is necessary to the completion of the Asylum street improvement, or to remove a grade-crossing from Church street, or to accomplish any other public purpose, then it is a taking of private property for public use, which both constitutions prohibit unless just compensation is made therefor. It is true the commission has the power to take land, or other property which in its judgment may be necessary or proper to be taken for the purpose of the improvement which may be ordered under authority of the statute; and the act prescribes the manner in which it shall be done. But this clearly is not a proceeding under that statute. No purpose is named for which the land is wanted; there is no description of land or other property proposed to be taken; no party is named for whose benefit the land is required; and the proceedings do not contemplate the appointment of appraisers to estimate damages. It is a mandamus pure and simple. Counsel for the plaintiffs deny that any legal damage will result to the defendant. Thus it clearly appears that there is no intention of having damages appraised in this action.

It is further suggested that it is in the power of the legislature, and also of this commission, to take any property of any party concerned in causing danger to life, and to any extent needed, without compensation; and Dunham v. City of New Britain, 55 Conn., 378, is cited as sustaining that position. I will not discuss that matter, as it is not properly before us. One thing is certain, the legislature has not yet taken that ground in this matter, and has not authorized the commissioners to do so. It has expressly authorized the commission to take any railroad property or highway that might be needed for the purpose of the improvement, and have the damages appraised as required by law. And in apportioning the whole cost of the improvement the commission is in terms authorized to include land damages. I can discover in this statute no authority in the commission to take the land of either railroad company, or of the city, for the purpose of the improvement, without first having it condemned and appraised as the law requires.

It is further suggested that it will be safe to leave this matter to the judgment and discretion of the commission in the final adjustment of the whole matter. Without questioning at all the eminent fairness and wisdom of the commission, I will only say that the matter of appraising damages for land taken for this improvement has not been intrusted to it by the legislature, as it has expressly provided a different tribunal for that purpose; and that this defendant has a legal right, which cannot justly be denied it, to have the legislative tribunal appraise the damages rather than this commission. The former is in due course of law; the latter certainly is not. On the face of the proceeding, therefore, it is a taking of private property without just compensation.

In this opinion Torrance, J., concurred.