City of Norwich v. Story

Hinman, J. This was an application originally brought to the county court by the plaintiffs, Story and others, inhabitants of the city of Norwich, praying that a new highway within the limits of the city, be laid out and established, for the special convenience of said city, under the 29th section of the statute relating to highways and bridges. Rev. Stat., p. 591. The highway was established as prayed for, and the proceedings are admitted to be regular in point of form, but the claim is made on behalf of the city, that, by the act amending the city charter, which was passed in 1836, the court of common council of the city has the sole and exclusive [47] jurisdiction over the subject matter of highways within the city limits, and consequently that the county court, at the time the plaintiffs brought the suit, and the superior court since the county court was abolished, have ho jurisdiction over the case, because they have none over its subject matter. By the eleventh section of the amended city charter, the court of common council have power, as they shall judge needful, to lay out new highways, streets, public walks} public avenues, and public landing places in said city, and to alter, extend, or enlarge any highway, street, public walk, public avenue, or public landing place in said city, and to discontinue or exchange the same for other highways, streets, public walks, public avenues, or public landing places in said city, and to make, and cause to be executed, all such orders relative thereto as they shall judge proper; and the claim is that this section repealed the general statute, authorizing any inhabitant or inhabitants of a city or borough, whenever a new highway or common road is wanted within the limits of such city or borough, for the special convenience of the city or borough, to prefer a petition therefor to the county court. We suppose it is also involved in the claim, that not only the authority of the court to lay out highways for the special convenience of the city is taken away by the amended city charter, but the authority of the selectmen, and the court, to lay out and establish new highways which are of common convenience to the whole public, is also taken away within the city limits. Indeed the claim made in argument is, that the court of common council is invested with absolute discretion in respect to the laying out of highways, within the limits of the city. It is said that unless the jurisdiction of the common council is exclusive, we have the common council, the selectmen, and the superior court, each having full power over the same subject matter. This may be so, but we see nothing in the circumstance worthy of much consideration, as an argument in favor of an indirect repeal of the general statutes in respect to the laying out of highways. It appears to us quite obvious that the legislature did not intend [48] to take from the courts any jurisdiction over the subject, by conferring this power upon the common council. It is very common for different courts to have concurrent jurisdiction in respect to many subjects. It was so with the county and superior courts, before the county court was abolished. And we believe it was never claimed, that by merely conferring jurisdiction upon one court, which had formerly exclusively belonged to the other, the latter was divested of its jurisdiction, unless such an intention was clearly expressed. We are of opinion, therefore, that there is no error in the judgment complained of. In this opinion the other judges, Ellsworth and Storrs, concurred. Judgment affirmed.