City of Waterbury v. Macken
| Decision Date | 01 March 1924 |
| Citation | 100 Conn. 407,124 A. 5 |
| Court | Connecticut Supreme Court |
| Parties | CITY OF WATERBURY v. MACKEN ET AL. |
Appeal from Superior Court, New Haven County; Isaac Wolfe and Leonard J. Nickerson, Judges.
Proceeding by the City of Waterbury against John D. Macken and others to condemn land owned by defendants for park purposes. Defendant's demurrer to the complaint was overruled, and defendants appeal. No error.
Lawrence L. Lewis, of Waterbury, for appellants.
Charles S. O'Connor, of Waterbury, for appellee.
The complaint sets out that at a duly named meeting of the board of park commissioners of Waterbury it was voted to purchase certain real property owned by the defendant John D. Macken for an addition to Waterville Park in Waterbury, and to authorize its president, Terrence F. Carmody, to negotiate with the defendants John D. Macken and M. L. Macken mortgagee, for its purchase for a price not in excess of $10,000, and that, if Macken would not agree to sell for this sum, to authorize President Carmody to take such steps as may be necessary for, and on behalf of this board to condemn " said property in the manner provided by law," and that the plaintiff and Macken were unable to agree upon the amount to be paid for this property, wherefore the plaintiff prays for the appointment of a committee to ascertain the value of the land and assess just damages to Macken and the mortgagee, and report their doings to the court. The defendants demurred because the board of park commissioners had no authority to bring this action in behalf of the city, and that it should have been brought by the board.
The title to all property used for park purposes in Waterbury is in the city of Waterbury. Special Laws 1921, c. 233, § § 3, 5, and 15. The public parks and all park property of the city of Waterbury are placed by this act (sections 1 and 3) under the care, management, and control of the board of park commissioners. The board, as the act in its entirety clearly shows, is a ministerial board of the city of Waterbury, charged with this duty of care, management, and control. The city provides the funds for the purposes of the board, exercises a supervisory control over its expenditures and its books, and through its board of aldermen rejects or approves of the board's selection of members.
Section 3 provides:
" The board shall have power to acquire, and the city of Waterbury to hold, property, whether within or without the corporate limits of said city, for the purpose of establishing public parks * * * by condemnation or by contract for the same," etc.
We think this provision gives the board the power to acquire by condemnation property for the city of Waterbury; the board is constituted the agent of the city to conduct the negotiation for purchase or for condemnation in behalf of the city, and not for itself.
Section 16 specifies that the board may proceed to condemn property in the manner provided for the condemnation of land by municipal corporations by the General Statutes of the State. That method is that of General Statutes, § 5186. The action of the board in conferring upon its president the authority to conduct the negotiation, and if necessary the condemnation proceeding, was a reasonable delegation by it of its power to carry out its ministerial duty. The complaint is drawn in accordance with the usual practice and neither General Statutes, § 5186, nor any other provision of law requires that there be a recital of the authority of the board to act or vote in condemnation proceedings. The board acted in virtue of a statute of the state amending the charter of the city of Waterbury as granted to it by the General Assembly.
The final ground of demurrer criticizes the sufficiency of the allegations of the complaint in its failure to allege that any appropriation has been made by the city of Waterbury to pay for this public improvement. This, it is urged, is made a prerequisite to the institution of this proceeding by Special Laws 1895, p. 469, § 133, which provides:
" No public improvement of any kind shall be ordered by the board of aldermen or other authority having power to authorize the same, until an appropriation for said improvement has been duly made, and funds to pay for the same have been provided and set apart for that purpose."
Chapter 233, Special Laws of 1921, creating the board of park commissioners, is an independent act, and the section of the charter quoted has no relation to the proceeding for condemnation under the special law of 1921. The terms of this act indicate this, and its seventeenth section expressly provides for the repeal of all acts inconsistent with it. By amendment an additional ground is added to the demurrer, viz. that this special act is unconstitutional in that it violates article 10, § 2, and article 32 of the Constitution of the state of Connecticut. The defendants' contention is that the action of the General Assembly, in naming the members of the board, in fixing their terms of office, and giving to them the power to name the successors, violates our social compact and Bill of Rights. We do not deem it necessary to discuss the constitutional question involved in this ground of demurrer. The matter has been before us on other occasions, and the construction accorded by us to the provisions of the Constitution involved been definitely fixed. We cannot sustain this ground of demurrer without reversing our former decisions, and this we have no disposition to do. It is too late to reopen the questions settled by these decisions. Towns in Connecticut have no inherent rights and " no power except such as are expressly or impliedly granted to them by the legislative power of the state."...
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