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State ex rel. N. York & N. Eng. R. R. Co. v. Asylum St. Bridge Com. refused the defendant's motion to erase the case from the docket, and afterwards the parties were fully heard upon all the grounds presented by the plaintiff's reasons of appeal. These reasons need not be enumerated, since they may be fairly held to present and cover all phases of the broad general question-Ought the writ to issue? And was the judgment of the Superior Court denying it erroneous?

The first subordinate inquiry under this general one is. whether the action of the commission is subject to direction by mandamus. Manifestly a negative answer will dispose of the case. What then are the powers which the legislature have conferred upon the commission? The answer may be found in the language of the acts which created it, quoted at length in 59 Conn. R., pp. 66, 7, 8. It is expressly declared in section four of the amended act of 1885, as there printed, that the commission shall possess all of the powers of the General Assembly, "and may direct by whom, when and how, the work shall be performed, and who shall pay for the' same, and what proportion of the entire expense, including land damages, each party shall pay and bear; and they may, in the event of any disagreement between the parties, determine the cost of the whole or any portion of the work, and make any and all orders as to the manner and amount of payment which they may judge reasonable; provided, however, that in no event shall said city of Hartford be required to pay any portion of the cost of any changes in the present depot, and not exceeding one half of all the other expenses, including land damages, incurred under this resolution." It would seem as if, subject only to the limitation upon the assessment against the city of Hartford, no grant of power could be more plenary or conferred in more explicit and unqualified terms, and that the duties to be performed by the commission were such as in the highest degree to call for the exercise of judgment and discretion. And that a writ of mandamus will never issue "in a case where the effect of it is to direct or control an executive officer in the discharge of an executive duty involving the exercise of discretion and. judgment," has been so often decided by this court, and is so-

State ex rel. N. York & N. Eng. R. R. Co. v. Asylum St. Bridge Com.

fundamental, that, to borrow the language of Judge LOOMIS in Batters v. Dunning, 49 Conn., 480, it "is too obvious to require the citation of any authorities." It is only fair to the plaintiff to say that it does not assume to claim that the commission, in the use of its discretion, in the exercise of the powers conferred, and the discharge of the duties imposed upon it by the legislature, is subject to judicial interference by mandamus. The contention is that it is by the legislative authority made the duty of the commission to find, and then to apportion between the two railroad corporations and the city of Hartford, the entire expense, loss and damages to all, caused by or resulting from the execution of the orders made by such commission; that while, as to the amount of such damage, and as to its relative apportionment, subject of course to the limitations relating to the city of Hartford, the judgment of the commission is exclusive and final, the duty to find and to apportion the entire amount is direct, positive and perfect; and that such duty is therefore not the exercise of a discretionary power by the commission, since in regard to it it has none, but is to it a matter of plain duty, and to the plaintiff of absolute right; and that hence, if the commission fail to discharge such duty, the court will lend its aid by mandamus to the plaintiff to compel such performance and to enforce such right. And the plaintiff claims further, if it shall be held that it is within the discretion of the commission to determine whether the rejected items of claimed damage to the plaintiff ought or not to be considered. and apportioned as a part of the entire expense, that it is manifest, from the recorded and recited action of the commission, that it utterly failed to exercise that discretion and refused to consider such items, solely because of an erroneous idea that it was not within its jurisdiction to do so, and that such an error can be corrected, and can only be corrected and remedied, by mandamus, which will declare the true extent of the jurisdiction of the commission and direct its full exercise, namely, that the commission "inquire into the merits of the damage claims presented, and if any such damage shall be proved and found to be justly due, to order its

State ex rel. N. York & N. Eng. R. R. Co. v. Asylum St. Bridge Com.

allowance and payment as part of the entire expense of the Asylum street bridge improvement." Now, while the general principles relating to mandamus, upon which the plaintiff relies in this contention, that is to say, that where it appears or can be proved that there is a fixed, definite, precise act, which it is the absolute duty of a public officer to do, in a particular way and at a particular time which has arrived, and the clear legal right of a party to have so done— a right concerning a substantial matter, and there is no other legal remedy, the performance of such act, of such duty, the enforcement of such right, can be secured by mandamus; and also that the exercise of existing discretion by the officer vested with it may itself be an act of such fixed, definite and precise nature, and so the absolute duty of the officer and right of a party, that such officer may be compelled by mandamus in case of refusal, no matter what the ground of such refusal may be, to exercise such discretion to hear and determine, although as to such determination, beyond the simple direction to make it, he must be left free. While these doctrines seem well settled, and have been affirmed by this court in repeated decisions, in order to warrant the plaintiff in the application which it would make of such doctrines, and the result which it claims, it would be necessary, in reference to the first part of its contention, namely, that it was mandatory upon the commission to take these items into their consideration, to construe the language of the legislature, which we have quoted, very differently from the natural and ordinary import of the language used. That language apparently had strict reference to work to be ordered and directed done by the commission, concerning which it was declared that the commission might "direct by whom, when and how the work shall be performed, and who shall pay for the same, and what proportion of the entire expense, including land damages, each party shall pay and bear; and they may, in the event of any disagreement between the parties, determine the cost of the whole or any portion of the work." So clearly is this language, both by its context and by its terms, confined and limited to "expense" and "cost" of "work," that it was VOL. LXIII.—7

State ex rel. N. York & N. Eng. R. R. Co. v. Asylum St. Bridge Com. deemed necessary to expressly say "including land damages," lest otherwise even the cost and expense of land, which the preceding section authorized the railroad companies and the city of Hartford to take, might be regarded as not included. We may add that the proviso as to the city of Hartford, which follows the language just quoted, that the city should not be "required to pay any portion of the cost of any changes in the present depot or of the construction of any new depot," adds confirmation to this intent. It would seem idle to protect the city from any items of cost actually incurred in any changes, if at the same time it was left open to liability for what might be found infinitely greater sums, for speculative, consequential and incidental damages, and loss resulting from such changes or improvements. But in order to support the plaintiff's claim it must be held that notwithstanding this language of the legislative acts, or rather, as we shall presently show, by virtue of such language, it was, it thereby became, the duty of the commission, in the words of the plaintiff's brief, "to estimate the entire expense of the improvement in accordance with the ordinary rules of law. It is the duty of the commission to ascertain the entire expense. If the items of expense which we present are such as in a court of law should be considered in estimating the entire expense, the commission, in refusing to consider them, has simply refused to do that which the law expressly directs it to do. It was not an act which they could do or refuse to do at discretion." It seems to us that the plaintiff reaches this conclusion only by a confusion of terms and things. There is in this case no occasion to inquire what items of damage to the owner are or may be considered when private property is taken for public use through the exercise of the right of eminent domain. No such property, no property of the plaintiff, was so taken. The plaintiff admits in its brief that it was held by this court, in the two cases in which these acts were considered, Woodruff v. Catlin, 54 Conn., 277, and Woodruff v. New York & New England R. R. Co., 59 Conn., 63, that the power exercised by the state, through the commission, was the police power

State ex rel. N. York & N. Eng. R. R. Co. v. Asylum St. Bridge Com. in abating a nuisance; that it was not contemplated that the public should pay anything by way of compensation or damages to the three corporations or any part of the expense of the improvement; that such improvement was a duty of such corporations and its expense a debt that they must pay. "The debt to be paid to the public is due from three, and the question arises as between them what each has to pay or bear." There is certainly no rule of common law, flexible or inflexible, by which this question can be decided. The only right of either of these tort feasors to contribution from the others, or to apportionment of damage, incident to the carrying out of the plan, must be derived from the language used by the legislature. New York & New England R. R. Co.'s Appeal from Commissioners, 58 Conn., 532; Woodruff v. Catlin, supra. The plaintiff, however, claims to be substantially supported in this contention by the language used by this court in Woodruff v. New York & New England R. R. Co., supra, p. 93, where, in referring to the expense to which the company alleged it would be subjected in carrying out the order of the commission concerning the removal of surface tracks, it was said "That is an argument to be addressed to the commission. So far as we have been able to examine, we find no reason why the commission might not take any special damage to the defendant, or to the city of Hartford, or to the New York, New Haven & Hartford Railroad Company, into account, as part of the entire expense, and determine what proportion each should bear, subject only to the limitations fixed in the resolutions." It is unnecessary to determine what we might consider "special damage," or whether, upon further examination than we felt called upon to make in the former case, or as seems called for in this, we might or might not find reason why the commission might not take any item of the plaintiff's bill for such alleged damage into its consideration and apportionment as a part of the entire expense, for it is evident that the language used by this court carries with it no intimation of an opinion concerning the duty of the commission in the matter. It is rather declaratory in another way of what had been previ

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