Borough of Stonington v. States

Butler, J.

No obligation rest upon any territorial or municipal corporation in this state by the common law to lay out, construct or repair highways, and no application can be made to any court to enforce such obligation, unless it is imposed and the process is given by express statutory provision. The charter of the borough of Stonington confers power to lay out and construct new highways within its limits, but imposes no obligation to do it, and confers no authority upon the courts in respect to them. A provision in the general act relative to highways, which first appeared in the revision of 1821, did impose such an obligation upon all boroughs, and confer upon the county court the same power to enforce it which was applicable to towns. But that section of the law was repealed in 1856, and the obligation upon the borough and the jurisdiction of the court ceased upon such repeal. And no agreement or consent of parties could authorize the court to entertain the petition and render the judgment complained of, and it was utterly void.

And notwithstanding the judgment complained of was void, and not merely erroneous, we are satisfied that the plaintiffs in error were entitled to bring their writ to annul it. The statute (Rev. Stat., tit. 1, sec. 163,) gives in general terms a right to the writ, and we know of no reason why it should be construed to limit the right so as not to embrace cases where the judgment sought to be reversed is void for want of jurisdiction in the court. Such writs have been sustained at common law, by the courts of the United States, in the neighboring states, and in England, and even where brought by the original plaintiff in the void suit. Jordan v. Dennis, 7 Met., 590 .

*215 There is manifest error, and judgment should be rendered for the plaintiffs in error.

In this opinion the other judges concurred.