text:
    Baker vs. The Town of Windham.
    In proceedings under the statute (Rev. Stat., tit. 24, § 22) providing for an application to the superior court for relief, by any party aggrieved by the doings of selectmen in laying out a highway, and which provides that the selectmen shall be duly cited to show reason why the relief should not be granted, the town is the party respondent, and service on one of the selectmen is sufficient.
    It being provided by the statute that such application shall be referred to a committee of three disinterested persons, selected by the parties, or if the parties can not or do not agree in the selection, by the court, it is not necessary to the validity of the appointment of such a committee, that the court shall have expressly found, either that the parties agreed, or were unable or failed to agree on the persons appointed, but it will be presumed that the court, having jurisdiction of the cause, acted properly in making the appointment.
    This was a petition to the superior court for the county of Windham, at its November term, 1856, for relief from the doings of the selectmen of the town of Windham in laying out a certain highway, brought under the provisions of the 22d section of the act concerning highways and bridges. [Rev. Stat., tit. 24.]
    The statute referred to provides that any party making such application for relief shall “ cause said selectmen to be duly cited, to show reason, if any they have, why such relief should not be granted,” and that if it be alleged in the petition that the highway is not of common convenience and necessity, it shall be referred to the county commissioners, and on their finding that the way is not of common convenience and necessity, the court shall set aside the laying out of the same by the selectmen.
    A later statute (Acts 1856, p. 73) provides that the above duty of the county commissioners shall be discharged by special committees appointed in each case, consisting of “ three judicious disinterested persons, selected by the parties, petitioners or applicants and respondents, or if they can not or do not agree in such selection, by the court ” The petition was served on one only of the three selectmen of the town. The town was defaulted at the first term of the court. The petition alleged that the way was not of common convenience and necessity, and was referred to a committee of three disinterested persons, who having heard the case, reported that they found the way not to be of common convenience and necessity. The record of the appointment of the committee did not state that the parties had agreed, or had been unable or had failed to agree, in the selection of the members of the committee, but merely stated the appointment of the committee by the court; nor was such fact expressly stated in any part of the record.
    One Jeptha Geer, claiming to be interested in the laying out of the road, appeared and remonstrated against the acceptance of the report of the committee, on the ground that service of the petition should have been made on all the selectmen, and that the court had not found before the appointment of the committee, that the parties had been unable or had failed to agree on the persons of whom the committee should consist. The court held the remonstrance insufficient, accepted the report, and passed a decree setting aside the laying out of the road. The remonstrant there, upon, by a motion in error, brought the record before this court for revision.

      I. A. Welch for the plaintiff in error.
    1. The court below had not jurisdiction in the appointment of the committee. 1st. There is no averment upon the record that the parties could not agree or had not agreed in the selection of a committee. Waterbwry v. Darien, 8 Conn., 162. Treat v. Middletown, ib., 243. Waterbury v. Darien, 9 ib., 252. Plainfield v. Parker, 11 ib., 576. Huntington v. Birch, 12 ib., 142. Southington v. Clark, 13 ib., 370. Torringlon v. Nash, 17 ib., 197. Gaylord et al. v. Couch, 5 Day, 223. Griswold v. Mather, 5 Conn., 435, 438. Skinner et al. v. Bailey, 7 ib., 496, 500. Spencer v. Overton, 1 Day, 183, 186. 2d. The omission of such an allegation is not cured by the default of the respondents. Treat v. Middletown, supra, Bradford v. Bradford, 5 ib., 127. Baron v. Abeel, 3 Johns., 431. Bacon v. Page, 1 Conn., 404. Spencer v. Overton, supra.
    2. The service being made upon one of the selectmen alone, was insufficient. 1st. The language of the statute is imperative; and it is, “ causing said selectmen to be duly cited.” 2d. The selectmen being the common officers for laying out public highways and private ways, to suppose the town to be the party in the case of private ways, would lead to an absurdity. Rev. Stat., tit. 23, sect. 21. 3d. In the two classes of highways, the statute prescribes distinct modes of service, neither of which conforms to the general rule of service upon towns. Rev. Stat., tit. 1, sect. 17; ib., tit. 23, secs. 22, 24. 4th. The selectmen act as the agents of the legislature, under delegated powers, in exercising the right of eminent domain, that right being vested in the state and not in the town. They formerly acted arbitrarily, making no report and no record. Stat., ed. 1702, pp. 49,50. Ib., ed. 1715, pp. 50, 51. Ib., ed. 1750, p. 87. The relation of agents, or trustees, of the government, on the part of the selectmen, is inseparable from the doctrine of the right of eminent domain. 2 Kent’s Com., (ed. 1854,) 339, (n. a.) Beekman v. Saratoga and S. R. R. Co., 3 Paige, 45,73. Hartwell v. Armstrong, 19 Barb., 166, et seq. Bloodgood v. M. & H. R. R. Co., 18 Wend., 9, 37, They are here called by senator Mason, “the people’s representatives.” Winslow v. Gifford, 6 Cush., 327. E. Hartford v. Hartford Bridge Co., 10 How., 511, 535. Backus v. Lebanon, 11 N. Hamp.,19, 25. White Riv. T. Co. v. Vt. Cent. R. R. Co., 21 Verm., 590, 594. Boston Water Power Co. v. B. & W. R. R. Co., 23 Pick., 360, 396. Waterbury v. Darien, 8 Conn., 162. Salem and Hamburg Turnpike Co. v. Lyme, 18 ib., 451. Clark v. Saybrook, 21 ib., 313. Torrington v. Nash, 17 ib., 197. And, in such a capacity, the selectmen are virtually the parties to the suit, and as such, entitled to service, individually. Rev. Stat., tit. 1, sect. 14. Wellington et al. v. Petitioners, &c., 16 Pick., 87, 105. Groton and Ledyard v. Hurlburt, 22 Conn., 178, 189.
    3. The fact that the town pays for the road does not constitute the town, in its corporate capacity, the party to the suit. Torrington v. Nash, 17 Conn., 197.

      Bwrnham, for the defendant in error.
    1. The service in this case was sufficient under a reasonable construction of the statute regulating the matter. The language of the statute is, that the party making the application for relief shall “ cause the selectmen to be duly cited to show cause,” &e., intending no other or different service than that required by section 24th of the same act, which regulates the service of citations in cases of petitions for new highways; the language in the latter case being that the applicant “ shall cause a citation to be served on one or more of the selectmen.” The selectmen act as a board, and are cited by leaving a copy with one of their number. The town in each of these cases is the party in interest, responsible for the consequences of laying out the road. The selectmen in either case have no interest in the matter above what other citizens of the town have, and act merely as the agents of the town. Plainfield v. Parker, 11 Conn., 576. There is no reason why in this case a copy should be left with each, when in'the other, a copy left with one is sufficient. In all suits against towns, service upon one of the selectmen is sufficient. Rev. Stat., tit. 1, sec. 17.
    2. The committee wasjfproperly appointed by the court. It was clearly to be inferred from the record that the applicants and respondents did not agree in the selection, inasmuch as it appears that the respondents were not in court, but were defaulted for non-appearance. Of course there then could be no agreement. Harwinton v. Catlin, 19 Conn., 520. And it is no objection that this fact of the non-appearance of the respondents does not appear in the finding of the court prior to the appointment of the committee. It is sufficient if it appears^at any time in the progress of the proceedings prior to rendering final judgment. Southington v. Clark, 13 Conti., 370. The court having appointed the committee, it will be presumed until the contrary appears, either that they appointed those selected by the parties, or that the parties did not agree in the selection, in either of which cases there would have been no ground of complaint. Harwinton v. Catlin, supra.
    3. The remonstrant has no right to take either of the above exceptions. He is not a party to the application, but comes into court only by virtue of certain provisions of the statute, for specified purposes. He can not complain of that which in no way affects his rights. The statute makes the town the party, and no one else, and requires service to be made on the town, and on no one else. If the service was defective the town might complain, but no one else can. So too in regard to the appointment of the committee. If the town might complain on the grounds stated, this remonstrant can not, because he had no rights in regard to the appointment of the committee. The town as respondent had the right to agree with the applicant in the selection of the committee, if the parties chose to exercise that right, but the remonstrant had nothing to say, nor could have, in regard to the selection, and has therefore no right to complain of it. Plainfield v. Parker, 11 Conn., 576.
   Ellsworth, J.

We think the court was correct in overruling the objections made by the remonstrant.

The selectmen of the town of Windham, having, in due form of law, laid out the highway in question, which afterward was approved by the town at a legal meeting, it became an established highway of the town, subject only to the revision of the superior court, upon the appeal of any person who felt aggrieved. An appeal was taken by Mr. Baker, and the proceedings establishing the road were set aside.

When Mr. Baker brought his petition to the superior court, asking the court to review those proceedings, it appears that the petition was served only on the first selectman of Wind-ham. This the remonstrant insists was not service enough to give the court jurisdiction. He says it should have been made on each one of the selectmen, and that this is required by the statute. (Rev. Stat., tit. 24, § 22.) The court think there is nothing substantial in this claim. The town of Windham, and not the selectmen individually, is the party respondent on the record, and the town is duly notified by service on the selectmen, as in all other cases. This is evident from the fact that the town alone is interested in and liable for the road ; its agents laid it out and the town approved of it; it must pay the damages assessed to individuals, and must make the road and keep it in repair until it sees fit to discontinue it, which may be done at any time, subject to a right of review in favor of such persons as are injured by the discontinuance. This principle was substantially decided in Plainfield v. Barker, 11 Conn., 576. We are quite satisfied that the service or notice was sufficient, and that the superior court had jurisdiction.

The next objection is, that the record does not show that, before the superior court appointed the committee to review the doings of the selectmen, the parties could not agree upon the persons to be selected. The language of the statute of 1856, chapter 53, is, “ if the parties can not or do not agree in such selection,” &c. This cause was properly before the court, as we have already shown, so that the court had taken jurisdiction, and of course could proceed to do what was legal and proper in the premises. The court did appoint the committee; hence we must presume it had found the facts necessary to render that act proper and within its province, for it certainly had acquired jurisdiction. It may have found that the parties did agree upon this very committee in the outset, and thereupon the court approved of and formally appointed them. The default of the town is not inconsistent with this supposition, and if it is, it follows that the town, not being in court, could not and did not agree upon a committee. It is not material in what part of the record a necessary fact appears, if only it does appear, as was decided by this court in the cases of Southington v. Clark, 15 Conn., 370, and Harwinton v. Catlin, 19 ib., 520.

Overruling these objections, we think the superior court did right in accepting the report of its committee, and setting aside the doings of the town of Windham and the selectmen.

We find no error in the judgment complained of.

In this opinion the other judges, Storrs and Hinman, concurred.

Judgment affirmed.


source: Caselaw Access Project

author: Storrs, C. J.

license: Public Domain

text:
    Anderson vs. Wheeler.
    A promissory note, made in the state of New York by A. to the order of B. both being citizens of that state, and payable at a bank in the city of New York, was endorsed and delivered before due to 0., a citizen of Connecticut, who had since remained the owner of the same. After it fell due, A obtained in the state of New York a discharge from his debts under the insolvent laws of that state, which he pleaded in bar of an action brought on the note in this state by C. Held, 1. That the contract was to be considered as standing on the same ground as if the promise in the note had been originally made to C., and was not therefore within the operation of such insolvent laws as made between citizens of that state. 2. That the fact that the note was payable in the state of New York did not bring it within their operation — and 3. That consequently the discharge was no bar to the action.

      Assumpsit ; brought by the plaintiff as endorsee of the following note:
    $1,000. New York, 8th March, 1854. Sixty days after date I promise to pay to the order of William Gilchrist, one thousand dollars at the American Exchange Bank, value received. F. G. Wheeler. [Endorsed, William Gilchrist.]
    The case was tried on an issue closed to the court, at the term of the superior court holden in Tolland county in February, 1857, and reserved, on the finding of the facts, for the advice of this court as to the judgment to be rendered.
    The court found that the note was made and delivered for a valuable consideration to the payee at the time when it bears date, and before it fell due was for a valuable consideration endorsed and delivered by the payee to the plaintiff, who had ever since remained the owner of the same; that the maker and payee of the note were, at the time it was made, residents and citizens of the state of New York, the former having ever since continued so, and the latter for more than a year after the date of the note ; that the plaintiff at the time of the negotiation of the note resided and had ever since resided in Mansfield in the state of Connecticut; and that the American Exchange Bank was a banking institution located and doing business in the city of New York.
    The court further found that on the 31st day of January, 1856, the maker of the note, upon proceedings instituted in the state of New York since the maturity of the note, received a discharge from all his debts under the insolvent laws of that state, but that the plaintiff received no actual notice of such proceedings, and had never presented the note against, or received any dividend from, the insolvent estate of the maker, in settlement in that state.
    Hyde, for the plaintiff.
    A discharge from debts under the insolvent laws of any state is of no validity when pleaded in the courts and against the citizens of another state. Ogden v. Saunders, 12 Wheat., 213, 363. Boyle v. Zacharie, 6 Peters, 345. Cook v. Moffat, 5 Howard, 295. Norton v. Cook, 9 Conn., 314. 2 Pars. on Con., 1st ed., 536.
    The fact in this case, that at the date of the note both the maker and payee were residents of New York, will make no difference. The note was negotiable, and was endorsed to the plaintiff, a citizen of Connecticut, long before due, was protested for non-payment on the 10th of May, 1854, and was then the property of the plaintiff, and became payable wherever the plaintiff might be; and the defendant did not obtain his discharge till January 31st, 1856. Ogden v. Saunders, supra. Baker v. Wheaton, 5 Mass., 509. Braynard v. Marshall, 8 Pick., 194. The promise was not to pay the original payee alone, but to pay whomsoever should be the owner of the note when it fell due.
    The fact that the note was by its terms payable at a bank in the state of New York, can not vary the case, as the plaintiff, not being a citizen of New York, can not be affected by the insolvent laws of that state.
    If the contract is one made or to be performed in any other state than that where the discharge is obtained, or if the plaintiff is a citizen of another state and does not voluntarily subject himself to their jurisdiction by suing in the courts of the state where the discharge was granted, the discharge is equally unavailing. Ogden v. Saunders, supra. Donelly v. Corbett, 3 Seld., 500. Poe v. Duck, 5 Md., 1. Scribner v. Fisher, 2 Gray, 43. Parkinson v. Scoville, 19 Wend., 150. These are cases where suits were brought in the states where the discharge was obtained. In Ogden v. Saunders, the draft was presented and accepted in New York, and therefore a New York contract as fully as in this case, and yet the discharge was held invalid.
    Our courts can be asked to give effect to this discharge only on one of two grounds. Either because it is a judicial proceeding and is therefore entitled to effect here as the judgment of the courts of a sister state, or that we are bound to give effect to the insolvent laws of a sister state in a spirit of comity. If it is to be regarded as a judgment, it is entitled to no effect here, as it is found that the plaintiff had no notice of the proceedings upon which the judgment was obtained. Ogden v. Saunders, supra. Wood v. Watkinson, 17 Conn., 500. We can be asked to go no further in a spirit of comity, where the rights of our own citizens are involved, than the courts of New York would go in a like case. Donelly v. Corbett, 3 Seld., 500.

      Brockway and H. B. Harrison for the defendant.
    A discharge of a contract by the law of the place where the contract is made and to be performed, is a good discharge every where and extinguishes the contract. Story Confl. of Laws, secs. 331, 332, 335. Story Prom. Notes, sec. 168. Parson’s Mercantile Law, 316. Ory v. Winter, 4 Martin, N. S., 277. Very v. McHenry, 29 Maine, 206. Vermont State Bank v. Porter, 5 Day, 316. Sherill v. Hopkins, 1 Cow., 103. Smith v. Smith, 2 John., 235. Andrews v. Herriot, 4 Cow., 508, 514, and cases below cited.
    Wheeler was absolutely discharged from this contract, unless the insolvent law of New York is unconstitutional. 2 N. Y. Rev. Stat., 204. That law is not unconstitutional, unless its action upon contracts would impair the obligation of contracts within the meaning of the constitution.
    When that law acts upon a contract made in New York, by a citizen of New York, to be performed in New York, in favor of a citizen of New York, it does not impair the obligation of that contract within the meaning of the constitution. This proposition is undisputed. See Saunders v. Ogden, 12 Wheat., 213, and the course of decisions based upon that case, and cases cited below.
    If this be admitted, as it must be, there is no escape, on principle, from this further proposition, viz.: when that same law acts in the same way upon the same contract, made in the same place, by the same man, to be performed in the same place, in favor of a citizen of another state, it does not impair the obligation of that same contract. The obligation of the. contract is the same in both cases, and the action of the law in discharging it is the same in both cases.
    But Saunders v. Ogden has sometimes been regarded as an authority against this last proposition. Its authority, (so far as Judge Johnson’s obscure reasoning could make it an authority,) against its own principles, has been overthrown. At any rate its authority against its principle, goes only to the effect that a contract made in New York by a citizen of New York directly and immediately with a citizen of another state, and not payable by its terms in New York, but payable generally, can not be discharged under the New York insolvent law. Blanchard v. Russell, 13 Mass., 1. Brigham v. Henderson, 1 Cush., 430. May v. Breed, 7 ib., 15. Sherrill v. Hopkins, 1 Cow., 103. Hicks v. Brown, 12 Johns., 142. Mathers v. Bush, 16 ib., 233. Pugh v. Bissell, 2 Blackf., 366. Cook v. Moffat, 5 How., 295. Parkinson v. Scoville, 19 Wend., 150. Hempstead v. Reed, 6 Conn., 480. Norton v. Cook, 9 ib., 314. Story Confl. of Laws, sec. 340. Goodwin v. Holbrook, 4 Wend., 377. Hall v. Boardman, 14 N. Hamp., 38. Scribner v. Fisher, 2 Gray, 43. Savoye v. Marsh, 10 Met., 594.
    This contract was made in New York, by a citizen of New York, directly and immediately with a citizen of New York, and was, by its express terms, payable in New York. It is therefore, in essential particulars, distinguishable from the contracts declared upon in the cases cited against us.
    The note in its inception, as between maker and payee, was liable to become extinguished by this discharge. The plaintiff had notice of this infirmity in the note, when he took it. Story Prom. Notes, sec. 190. Story Confl. of Laws, sec. 329-343.
   Storrs, C. J.

As the original parties to the note in question in this case were both citizens of the state of New York, where it was made, and where it was by its terms to be paid, it is plain that according to the doctrine settled by the supreme court of the United States in the case of Ogden v. Saunders, (12 Wheat., 213,) to the decision of which on a constitutional question like the one now before us, we are bound to conform, whatever might be our own opinion upon it, the discharge obtained by the defendant under the insolvent law of the state of New York, which was passed before the making of the note, is a bar to this suit, unless that discharge is rendered inoperative and void against the plaintiff, who is a citizen of this state, by reason of the note having been, before it fell due, transferred to him by being endorsed to him by the original payee. If, however, in consequence of such transfer, the contract should be considered in regard to the plaintiff as standing on the same ground as if the promise in the note had been originally made to him, then it is equally clear on the authority of the case which has been mentioned, that the contract being between citizens of different states, the discharge is no bar to the suit, unless validity is given to it by the fact that the note is expressly payable in New York. f

Two questions are therefore presented ; first, whether the contract should be treated as one between the plaintiff and defendant, citizens of different states, and secondly, whether if it is to be so treated, the fact that the note is payable in New York, delivers the case from the decision in Ogden v. Saunders, and makes the discharge valid.

As to the first of these questions we are clearly of the opinion, that the promise in this note should be considered as having-been originally made to the plaintiff, and that therefore the contract should be treated as if it had been originally entered into between him and the defendant. If the promise in this note had been made to the payee alone, and not to him or his order, and were therefore one of an ordinary character which by the general principle of the common law could not be negotiated or transferred to another, so as to vest the legal title to it in him, then, although the payee might have assigned an equitable title to it which would have been protected in favor of his assignee in an appropriate equitable mode, an action at law to enforce the promise must have been brought in the name of the original promisee, and perhaps in that action the effect of the insolvent discharge could not have been avoided by such assignment. It is unnecessary, however, to consider that point. In this case the contract is contained in a promissory note payable expressly to the original payee or his order, and was by him transferred by his indorsement to the plaintiff. It was made payable to the payee or to any person to whom he should by his endorsement, which is the usual mode of transferring such a contract, order it to be paid, and when it was so transferred, the effect of such transfer, according to the principle which prevails in regard to mercantile contracts of this peculiar description, and renders them negotiable and transferable so as to vest a legal title in them, and to the promise contained in them in the endorsee, contrary to the rule which applies to ordinary promises, and does not allow of their assignment so as to vest a legal right in them in the assignee, was to attach to and vest in the plaintiff, who was the endorsee, a legal title or right to the promise contained in the note, by virtue of which legal title an action in a court of law is sustainable in his name against the promisor. The promise of the defendant became in law by the endorsement of the payee a promise to the plaintiff, and thenceforth the note while in his hands should be considered as if it were originally made payable to him by his name. Indeed the original contract of the defendant from the time it was made, promises to pay the plaintiff as well as the payee, if the latter orders such payment, because it promises to pay the endorsee of the payee who is the plaintiff. The indorsement substitutes the endorsee as the promisee in the place of the payee and the law transfers to the former, on such substitution, the legal title of the payee by virtue of and in accordance with the original contract. This point has not been strenuously contested by the defendant, and is, we think, too plain to require a more extended discussion. We would only add that in several cases this point has been considered, in which, although it was not necessary to decide it, the views of the court strongly favored the conclusion to which we have come upon it. Baker v. Wheaton, 5 Mass. R., 509. Braynard v. Marshall, 8 Pick. R., 194. In regard therefore, to the effect of the discharge set up by the defendant, the contract is to be considered as if it was made originally between the parties to this suit.

In regard to the remaining question, as the discharge of the defendant was under the insolvent law of a state other than that of which the plaintiff was a citizen, we can not, according to our view of the decision in Ogden v. Saunders, as it has been expounded by the court by which it was pronounced, through Chief Justice Marshall, hold that the plaintiff is affected by that discharge because the note in this case was made payable in New York; which view accords with the construction which, in the case of Norton v. Cook, (9 Conn., 314,) was given by this court to that decision very soon after it was made. According to that exposition of the decision, it settled the principle that a state can not, consistently with the constitution of the United States, discharge its citizens by a bankrupt or insolvent law from contracts made with them by citizens of other states. Judge Johns on in that case first states the question under consideration to be, whether a discharge of a debtor under a state insolvent law would be valid against a creditor a citizen of another state, who has never voluntarily subjected himself to the state laws otherwise than by the origin of the contract, and after examining the question, gives the conclusion to which he comes, by saying that he considered “ the discharge under a state law as incompetent to discharge a debt due to a citizen of another state“ that as between citizens of the same state a discharge of a bankrupt is valid as it affects posterior contracts; as against citizens of other states it is invalid as to all contracts.” “ When the states in the exercise of that power” (the power of passing bankrupt laws,) pass beyond their own limits, and the rights of their own citizens, and act upon the rights of citizens of other states, there arises a conflict'of sovereign power, and a collision with the judicial powers granted to the United States, which renders the exercise of such a power incompatible with the rights of other states, and with the constitution of the United States.” That the court intended to settle the law on this subject as thus stated in this opinion of Judge Johnson, can not admit of a doubt. In Boyle v. Zacharie, (6 Pet. R., 348,) Chief Justice Marshall said, “ The judges who were in the minority of the court upon the general question as to the constitutionality of state insolvent laws, concurred in the opinion of Mr. Justice Johnson, in Ogden v. Saunders. That opinion is therefore to be deemed the opinion of the other judges who assented to that judgment. Whatever principles are established in that opinion are to be considered no longer open for controversy, but the settled law of the court.” If, after the explicit language of Judge Johnson in his opinion, and the equally explicit exposition of the decision in which it was given by Chief Justice Marshall, any confirmation is required to show that, by the true import of that decision, it settled the doctrine that a discharge by the insolvent law of a state operates only on contracts made between its own citizens, it is furnished by Judge Baldwin in Woodhall v. Wagner, Bald. R., 296, by Judge Story in Springer v. Foster, 2 Story R., 383, 387, and in his commentaries on the constitution of the United States, §§ 1011, 1384; and by the cases of Braynard v. Marshall, (Supra.) Towne v. Smith, 1 Wood. & Minot, 124, Brigham v. Henderson, 1 Cush., 430, Tebbets v. Pickering, 5 Cush., 83, and Pugh v. Bissell, 2 Blackf., 394, and the cases referred to in them. The same construction of the decision in Ogden v. Saunders, is adopted and maintained with great force in the cases of Poe v. Duck, 5 Maryland R., 1, and Donelly v. Corbett, 3 Selden R., 500, in which the precise point now under consideration was made and decided in conformity with the conclusion to which we have come. On the other hand, it was held in Parkinson v. Scoville, 19 Wend. R., 150, and Scribner et al. v. Fisher, 2 Gray R., 43, that the decision in Ogden v. Saunders, is inapplicable to a case where the contract was by its terms to be performed in the state under whose insolvent law the discharge was granted, and that therefore a discharge under such a law might be valid as to such a contract made between citizens of other states. The reasoning on this question is exhausted in the cases to which we have referred and we feel unable to super-add any important considerations. Suffice it therefore to say, that we are not satisfied that we are at liberty to introduce the exception or qualification to the case of Ogden v. Saunders, claimed on this point by the defendant; especially as we think that it would be clearly opposed to the ground upon which that case, so far as the present question is concerned, appears to have been decided, the protection of the independent rights of the citizens of the several states of the union under our national constitution.

We therefore advise that judgment be rendered for the plaintiff.

In this opinion the other judges, Hinman and Ellsworth, concurred.

Judgment for plaintiff advised.


author: CALLAHAN, C. J. MCDONALD, J., with whom BERDON, J., joins,

text:
    STATE OF CONNECTICUT v. EDWARD J. KRUELSKI, JR.
    (SC 16029)
    Callahan, C. J., and Berdon, Palmer, McDonald and Peters, Js.
    Argued June 3
    officially released August 3, 1999

      G. Douglas Nash, public defender, for the appellant (defendant).

      Robert L. Marconi, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (state).
   Opinion

CALLAHAN, C. J.

The sole issue in this certified

appeal is whether the state is barred by the double jeopardy clause of the fifth amendment to the United States constitution from retrying a defendant who is charged with a crime and, after a jury is empaneled and sworn, acquitted on a statute of limitations defense. We conclude that, under the circumstances of this case, the federal constitution permits a second trial.

The following undisputed facts and procedural history are relevant to this appeal. On August 22, 1994, an arrest warrant was issued charging the defendant, Edward J. Kruelski, Jr., with offering to perform home improvements without being registered as a home improvement contractor in violation of General Statutes § 20-427 (b) (5). Such a violation of § 20-427 (b) (5) is designated a class B misdemeanor and carries a penalty of imprisonment for not more than six months and a maximum fine of $1000.

In the information, the state charged that the offer in question had been made by the defendant on August 24, 1993. The statute of limitations applicable to violations of § 20-427 (b) (5) provides in relevant part that “[n]o person may be prosecuted for [such offense] . . . except within one year next after the offense has been committed.” General Statutes § 54-193 (b). The warrant for the defendant’s arrest was served and executed on August 25, 1994, more than one year after the defendant’s alleged violation of § 20-427 (b) (5).

In November, 1994, the defendant filed a motion to dismiss in the trial court claiming that the state had failed to commence prosecution within the one year time limitation set forth in § 54-193 (b). The trial court did not rule on that motion.

On May 2, 1995, a jury was empaneled and sworn and began to hear evidence. At the close of the evidence on May 3, 1995, the defendant moved for a judgment of acquittal, again arguing that the prosecution had not been commenced before the expiration of the one year time limitation set forth in § 54-193 (b). The trial court concluded that the prosecution of the defendant had not commenced until his arrest on August 25,1994, and, solely on that basis, granted the defendant’s motion for judgment of acquittal. The court did not resolve in the defendant’s favor any element of § 20-427 (b) (5). To the contrary, the court determined that the state had presented evidence capable of supporting a guilty verdict.

The trial court thereafter granted the state permission to appeal from its judgment of acquittal to the Appellate Court. The Appellate Court concluded that, as a matter of law, the prosecution of the defendant had commenced when the warrant for the defendant’s arrest was issued on August 22, 1994, which was within one year of the defendant’s alleged violation of § 20-427 (b) (5). State v. Kruelski, 41 Conn. App. 476, 487-88, 677 A.2d 951, cert. denied, 238 Conn. 903, 677 A.2d 1376 (1996). The Appellate Court, therefore, reversed the judgment of the trial court and remanded the case for further proceedings. Id., 488.

Following the remand, the defendant filed a motion to dismiss in the trial court, arguing that further proceedings would constitute a second prosecution for the same offense following an acquittal. The court denied the defendant’s motion for dismissal, and the defendant appealed to the Appellate Court. The Appellate Court concluded that further criminal proceedings were not barred by the double jeopardy provision of the fifth amendment and affirmed the trial court’s denial of the defendant’s motion to dismiss. State v. Kruelski, 49 Conn. App. 553, 558, 715 A.2d 796 (1998). We granted the defendant’s petition for certification to appeal from the judgment of the Appellate Court, limited to the following issue: “Did the Appellate Court properly conclude that the defendant’s prosecution was not barred by the double jeopardy clause of the federal constitution?” State v. Kruelski, 247 Conn. 925, 719 A.2d 1170 (1998).

On appeal, the defendant claims that, because the trial court rendered a judgment of acquittal in his trial, further prosecution is barred by his federal constitutional right not to be placed twice in jeopardy for the same offense. Specifically, the defendant maintains that, because the trial court made a determination as to the sufficiency of the evidence regarding the defendant’s statute of limitations defense, the court’s judgment constitutes an acquittal for purposes of double jeopardy. The state maintains, however, that the trial court’s judgment does not constitute an acquittal for purposes of double jeopardy because it was based solely on the defendant’s statute of limitations defense, and not on a determination that the state’s evidence regarding any element of § 20-427 (b) (5) was insufficient to support a guilty verdict. We agree with the state.

In United States v. Scott, 437 U.S. 82, 98 S. Ct. 2187, 57 L. Ed. 2d 65 (1978), the United States Supreme Court considered a double jeopardy challenge to the government’s attempt to retry a criminal defendant who had sought and obtained a midtrial dismissal of criminal charges on the ground that his defense had been prejudiced unconstitutionally by a preindictment delay. The court concluded that the double jeopardy clause did not bar further prosecution on those charges, stating: “As we have recognized in cases from United States v. Ball, 163 U.S. 662 [16 S. Ct. 1192, 41 L. Ed. 300] (1896), to Sanabria v. United States, [437 U.S. 54, 98 S. Ct. 2170, 57 L. Ed. 2d 43 (1978)], a defendant once acquitted may not be again subjected to trial without violating the Double Jeopardy Clause.

“But that situation is obviously a far cry from [a case in which] the Government was quite willing to continue with its production of evidence to show the defendant guilty before the jury first empaneled to try him, but the defendant elected to seek termination of the trial on grounds unrelated to guilt or innocence. [Such a case] is scarcely a picture of an all-powerful state relentlessly pursuing a defendant who had either been found not guilty or who had at least insisted on having the issue of guilt submitted to the first trier of fact. It is instead a picture of a defendant who chooses to avoid conviction and imprisonment, not because of his assertion that the Government has failed to make out a case against him, but because of a legal claim that the Government’s case against him must fail even though it might satisfy the trier of fact that he was guilty beyond a reasonable doubt.” (Emphasis added.) United States v. Scott, supra, 437 U.S. 96.

The court in Scott went on to state: “ ‘[A] trial judge’s characterization of his own action cannot control the classification of the action.’ [United States v. Jorn, 400 U.S. 470, 478 n.7, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971)], citing United States v. Sisson, 399 U.S. 267, 290 [90 S. Ct. 2117, 26 L. Ed. 2d 608] (1970). See also [United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S. Ct. 1349, 51 L. Ed. 2d 642 (1977); United States v. Wilson, 420 U.S. 332, 336, 95 S. Ct. 1013, 43 L. Ed. 2d 232 (1975)]. . . . [A]n appeal is not barred simply because a ruling in favor of a defendant ‘is based upon facts outside the face of the indictment,’ id., at 348, or because it ‘is granted on the ground . . . that the defendant simply cannot be convicted of the offense charged,’ [Lee v. United States, 432 U.S. 23, 30, 97 S. Ct. 2141, 53 L. Ed. 2d 80 (1977)]. Rather, a defendant is acquitted only when ‘the ruling of the judge, whatever its label, actually represents a resolution ... of some or all of the factual elements of the offense charged,.’ [United States v. Martin Linen Supply Co., supra, 571]. Where the court, before the jury returns a verdict, enters a judgment of acquittal. . . [retrial] will be barred only when ‘it is plain that the [trial court] . . . evaluated the Government’s evidence and determined that it was legally insufficient to sustain a conviction.’ [Id., 572].” (Emphasis added.) United States v. Scott, supra, 437 U.S. 96-97.

“[W]here [a] defendant, instead of obtaining a reversal of his conviction on appeal, obtains the termination of the proceedings against him in the trial court without any finding by a court or jury as to his guilt or innocence [he] has not been ‘deprived’ of his valued right to go to the first jury; only the public has been deprived of its valued right to ‘one complete opportunity to convict those who have violated its laws.’ Arizona v. Washington, [434 U.S. 497, 509, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978)]. No interest protected by the Double Jeopardy Clause is invaded when the Government is allowed to appeal and seek reversal of such a midtrial termination of the proceedings in a manner favorable to the defendant.” United States v. Scott, supra, 437 U.S. 100.

The United States Supreme Court’s decision in Scott establishes that, regardless of a trial court’s characterization of its disposition of a case, the double jeopardy clause of the federal constitution does not bar a state from bringing a further criminal proceeding against a defendant who sought and obtained a favorable midtrial termination of criminal proceedings on legal grounds unrelated to a determination as to the sufficiency of the evidence regarding the defendant’s factual innocence or guilt of the offense charged. Id., 437 U.S. 96; see also State v. Paolella, 210 Conn. 110, 122, 554 A.2d 702 (1989); State v. Evans, 205 Conn. 528, 534, 534 A.2d 1159 (1987), cert. denied, 485 U.S. 988, 108 S. Ct. 1292, 99 L. Ed. 2d 502 (1988). Thus, although in the present case, the trial court characterized its disposition as an “acquittal,” that characterization is not dispositive for purposes of double jeopardy. Instead, this court must make its own inquiry into the basis of the trial court’s disposition to determine whether, for purposes of double jeopardy, the court “acquitted” the defendant. In other words, we must determine whether the trial court’s judgment was based on legal grounds unrelated to a determination of the sufficiency of the evidence regarding the defendant’s factual innocence or guilt. See United States v. Scott, supra, 437 U.S. 96-97.

The defendant in the present case sought and obtained a midtrial judgment of acquittal on the ground that the state had failed to commence his prosecution within the one year time limitation period established by § 54-193 (b). We previously have stated: “Limitations statutes . . . are intended to foreclose the potential for inaccuracy and unfairness that stale evidence and dull memories may occasion in an unduly delayed trial. ... It is not the trial, but the danger to an accused of an unfair conviction because of delay prior to the initiation of criminal proceedings against which limitations statutes are designed to safeguard.” State v. Coleman, 202 Conn. 86, 91, 519 A.2d 1201 (1987); see also Gurliacci v. Mayer, 218 Conn. 531, 548, 590 A.2d 914 (1991); Zapata v. Burns, 207 Conn. 496, 508, 542 A.2d 700 (1988); Daily v. New Britain Machine Co., 200 Conn. 562, 584, 512 A.2d 893 (1986). We can discern no reason to distinguish, for purposes of double jeopardy, between the basis of the trial court’s disposition of criminal charges in the present case, i.e., staleness due to a supposed expiration of the statute of limitations, and the basis of the District Court’s disposition of the criminal charges in Scott, i.e., a preindictment delay that allegedly prejudiced the defendant’s ability to present a defense — a midtrial disposition that the United States Supreme Court concluded was not based on a determination as to the sufficiency of the evidence regarding the defendant’s factual innocence or guilt of the offense charged and, consequently, did not implicate the defendant’s double jeopardy rights.

In the present case, the defendant, nonetheless, maintains that the trial court’s judgment constitutes an acquittal for purposes of double jeopardy because it was based upon a determination of the sufficiency of the evidence regarding the factual elements of the defendant’s statute of limitations defense. In Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978), the United States Supreme Court addressed the ramifications, for purposes of double jeopardy, of a determination by a trial court as to the sufficiency of the evidence regarding the factual elements of the affirmative defense of insanity. To establish that defense, the defendant in Burks produced expert witnesses who testified that, at the time of the crime, he had been substantially incapable of conforming his conduct to the requirements of the law. Id., 3. The jury nevertheless found Burks guilty as charged. Id. On appeal, the Court of Appeals concluded that Burks had established a prima facie defense of insanity. Id., 3-4. Noting that the government, therefore, had the burden of proving Burks’ sanity beyond a reasonable doubt, the Court of Appeals further concluded that the prosecution’s evidence, even when viewed in the light most favorable to sustaining the verdict, was not sufficient to rebut Burks’ evidence regarding insanity. Id. Because of that failure of proof, the Court of Appeals reversed Burks’ conviction. Id. Rather than terminating the case against Burks, however, the Court of Appeals remanded the case for further proceedings. Id. Thereafter, Burks appealed to the United States Supreme Court claiming that the double jeopardy clause barred a retrial in his case. The United States Supreme Court, recognizing an exception to the general rule that the double jeopardy clause does not bar the retrial of a defendant who has succeeded in having his conviction set aside for error in the proceedings at trial, concluded that when a defendant’s conviction is reversed by an appellate court on the ground that there was not sufficient evidence to support a guilty verdict, the double jeopardy clause bars a retrial on the same charge. Id., 18-19. “Burks was based on the view that an appellate court’s reversal for insufficiency of the evidence is in effect a determination that the government’s [evidentiary] case against the defendant was so lacking that the trial court should have entered a judgment of acquittal, rather than submitting the case to the jury.” Lockhart v. Nelson, 488 U.S. 33, 39, 109 S. Ct. 285, 102 L. Ed. 2d 265 (1988).

In concluding in United States v. Scott, supra, 437 U.S. 97-98, that the double jeopardy clause did not bar a second trial of the defendant, the United States Supreme Court explicitly distinguished the basis of the double jeopardy claim in Scott — a preindictment delay prejudicial to the defendant’s ability to present a defense — from the basis of the double jeopardy claim in Burks — a failure of the government’s proof at trial. Specifically, the court stated: “Our opinion in Burks necessarily holds that there has been a failure of proof. . . requiring an acquittal when the Government does not submit sufficient evidence to rebut a defendant’s essentially factual defense of insanity .... The defense of insanity, like the defense of entrapment, arises from the notion that Congress could not have intended criminal punishment for a defendant who has committed all of the elements of a proscribed offense . . . where other facts . . . provide a legally adequate justification for otherwise criminal acts. Such a factual finding does necessarily establish the criminal defendant’s lack of criminal culpability . . . under existing law .... By contrast, the dismissal of an indictment for preindictment delay represents a legal judgment that a defendant, although criminally culpable, may not be punished because of a supposed constitutional violation.” (Citations omitted; internal quotation marks omitted.) Id.

The defendant maintains that the court’s reference in Scott to Burks v. United States, supra, 437 U.S. 1, establishes that a judgment of acquittal that is based upon a deteimination as to the sufficiency of the evidence regarding the factual elements of a statutory affirmative defense, such as a statute of limitations defense, constitutes an acquittal for purposes of double jeopardy. In Scott, however, the court also stated: “[A] defendant who has been released by a court for reasons required by the Constitution or laws, but which are unrelated to factual innocence or guilt, has not been determined to be innocent in any sense of that word, absolute or otherwise. In other circumstances, this Court has had no difficulty in distinguishing between those rulings which relate to ‘the ultimate question of guilt or innocence’ and those which serve other purposes.” United States v. Scott, supra, 436 U.S. 98 n.11. Thus, the court in Scott explicitly distinguished between: (1) determinations regarding the sufficiency of the evidence regarding either the offense charged or a defense offered to justify the defendant’s otherwise culpable conduct; and (2) determinations regarding the sufficiency of the evidence as to other legal defenses that do not relate to the defendant’s allegedly criminal conduct.

In the present case, the defendant deliberately sought to terminate the proceeding against him by using a statute of limitations defense. A statute of limitations defense is not a defense that, when proved, negates any element of a charged offense or establishes a legal justification for an otheiwise criminal act. Instead, this type of defense “represents a legal judgment that a defendant, although criminally culpable, may not be punished . . . .” Id., 98. The trial court’s judgment of acquittal was based solely on the defendant’s statute of limitations defense and not on any resolution in favor of the defendant of any element of § 20-427 (b) (5). We conclude, therefore, that the judgment rendered by the trial court does not constitute an acquittal for purposes of double jeopardy, and, consequently, the legal restraints of the law pertaining to the defendant’s double jeopardy rights do not bar a retrial in this case.

The judgment is affirmed.

In this opinion PALMER and PETERS, Js., concurred.

MCDONALD, J., with whom BERDON, J., joins,

dissenting. The issue in this case is whether a determination that the statute of limitations bars prosecution is an acquittal giving rise to double jeopardy protection. In Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978), the United States Supreme Court held that a court’s determination that the defendant’s insanity barred prosecution was an acquittal forbidding a second trial under the double jeopardy clause of the fifth amendment to the United States constitution. See id., 10-11. In United States v. Scott, 437 U.S. 82, 98 S. Ct. 2187, 57 L. Ed. 2d 65 (1978), decided the same day as Burks, the United States Supreme Court held that a court’s determination that preindictment delay required dismissal of the charges did not bar the government from appealing that dismissal. See id., 98-99.

In Sco tt, the United States Supreme Court contrasted a dismissal for preindictment delay and a dismissal based on a finding of insanity, concluding that the former is “a legal judgment that a defendant, although criminally culpable, may not be punished because of a supposed constitutional violation”; id., 98; whereas the latter involves a “ ‘failure of proof ” whereby the government fails to rebut “a defendant’s essentially factual defense of insanity, though it may otherwise be entitled to have its case submitted to the jury.” Id., 97. Double jeopardy would arise only when it is plain that the trial court evaluated the government’s evidence and determined that it was legally insufficient to sustain a conviction. See id., 98.

In his dissent in Scott, Justice William J. Brennan observed that the defense of statute of limitations is “a traditional factual [defense that is] routinely submitted to the jury . . . . Id., 115 (Brennan, J., dissenting). Justice Brennan did not believe that Scott would apply when the defendant’s case is dismissed based on a statute of limitations defense. See id. (Brennan, J., dissenting).

In Forman v. United States, 361 U.S. 416, 80 S. Ct. 481, 4 L. Ed. 2d 412 (1960), the United States Supreme Court upheld a Ninth Circuit Court of Appeals decision modifying its earlier decision in which the circuit court directed an acquittal on statute of limitations grounds. Id., 419-20. In its second decision, the court ordered a new trial. Id., 420. Because the jury had returned a guilty verdict and the circuit court, upon reargument, found sufficient evidence for the jury to have found that the statute of limitations had not run, double jeopardy did not bar a new trial. See generally id., 423-26. In Forman, the United States Supreme Court accordingly refused to apply Sapir v. United States, 348 U.S. 373, 75 S. Ct. 422, 99 L. Ed. 426 (1955), in which insufficiency of the evidence was the basis of a dismissal and double jeopardy barred a new trial. Forman v. United States, supra, 425. Justice Charles E. Whittaker concurred in Forman, observing that, if a jury was instructed, even erroneously, to acquit based on a statute of limitations defense, and had done so, “its verdict would . . . have ended the case.” Id., 429 (Whittaker, J., concurring).

Connecticut law requires the trial court to submit the defense of statute of limitations to the jury and to instruct the jury that, if the statute of limitations bars prosecution, the jury should return a verdict of not guilty. See State v. Ali, 233 Conn. 403, 416, 660 A.2d 337 (1995) (“[b]ecause the statute of limitations is an affirmative defense . . . [it] is a question of fact, for the jury”). Because the statute of limitations defense is to be decided by the jury and may result in a jury finding of not guilty, the trial court’s determination that that defense bars prosecution necessarily evaluates the sufficiency of the state’s evidence for conviction. Therefore, I would conclude that, in this case, the double jeopardy clause of the fifth amendment bars a second trial of the misdemeanor with which the defendant was charged.

Accordingly, I would reverse the judgment of the Appellate Court.

       The double jeopardy clause of the fifth amendment to the United States constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb . . . .” The double jeopardy clause is applicable to the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969); State v. Lonergan, 213 Conn. 74, 78, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2586, 110 L. Ed. 2d 267 (1990). The defendant has not raised a state constitutional double jeopardy claim in the present case.

       Jeopardy attaches when a jury is empaneled and sworn. See United States v. Jorn, 400 U.S. 470, 479, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971); State v. Buell, 221 Conn. 407, 413, 605 A.2d 539 (1992).

       General Statutes § 20-427 (b) (5) provides in relevant part that no person shall “oiler to make or make any home improvement without having a current certificate of registration under this chapter . . . .”

       See General Statutes § 20-427 (c) (1).

       See General Statutes §§ 53a-36 and 53a-42.