Beach v. Trumbull , 133 Conn. 282 ( 1946 )

The demurrer admits, for the purpose of determining the issues raised thereby, that the assessment of damage by the commissioner "was not made in good faith and with proper motives and does not constitute a fair, honest and just determination of the amount of damage sustained." In State v. Erickson, 104 Conn. 542, 545,133 A. 683, it is said: "Where a public officer proposes to proceed in plain disregard of the rules of law established for his governance, capriciously or arbitrarily, and not in the honest exercise of discretion or judgment, his conduct is tantamount to a refusal to act at all." See also 43 Am. Jur. 78. The dominant legislative intent as expressed in the statute is to make the town primarily liable for damage done to domestic animals by dogs. The machinery for implementing that intent has broken down because of what amounts to a refusal of the public officials to act. It follows that the plaintiff is entitled to a trial on the merits. The analogy to actions for damages for change of grade is close. Healey v. New Haven, 49 Conn. 394, 401; Holley v. Torrington,63 Conn. 426, 431, 28 A. 613; McGowan v. Milford, 104 Conn. 452, 453, 133 A. 570.

In this opinion MALTBIE, C.J., concurred.