State v. Giant's Neck Land & Imp. Co.

• Decision Date: 10 January 1933
• Citation: 163 A. 651,116 Conn. 119
• Parties: STATE et al. v. GIANT'S NECK LAND & IMPROVEMENT CO.
• Court: Connecticut Supreme Court

163 A. 651

116 Conn. 119

STATE et al. v. GIANT'S NECK LAND & IMPROVEMENT CO.

Supreme Court of Errors of Connecticut.

January 10, 1933

Appeal from Superior Court, New London County; Patrick B O'Sullivan and Allyn L. Brown, Judges.

Application by the State of Connecticut and others for assessment of the amount to be paid to Giant's Neck Land & Improvement Company for land proposed by the state park and forest commission to be taken in the name of the state, brought to the superior court. Demurrer to the prayer for relief sustained, and judgment rendered dismissing the application and the applicant appeals.

Error and cause remanded, with direction.

Ernest L. Averill, Deputy Atty. Gen., and Bernard A. Kosicki, Asst Atty. Gen. (Warren B. Burrows, Atty. Gen., on the brief), for the State.

Arthur M. Brown, of Norwich (Charles V. James, of Norwich, on the brief), for appellee.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY, JJ.

HINMAN, J.

Section 2166 of the General Statutes provides that the state park and forest commission " shall have power *** to acquire, maintain and make available to the public, open spaces for recreation. Said commission may take, in the name of the state and for the benefit of the public, by purchase, gift or devise, lands and rights in land for public open spaces." By section 2167 the commission is authorized " to take by condemnation land for the public purposes for which it is authorized to acquire land under the provisions of section 2166, and, if it cannot agree with the owner or owners of any land which it shall decide the interests of the state require for such purposes, as to the compensation to be paid therefor, the amount of damages for such taking shall be determined by three appraisers to be appointed by the superior court for the county in which such land is situated, or any judge thereof, on application of said commission after reasonable notice of such application shall have been given to such owner or owners." The present proceeding pertains to the exercise of powers and duties of the commission under these sections, and the application is that provided for by the portion of section 2167 last quoted. The prayer for relief is " for the appointment of a state referee" (instead of the three appraisers specified by this statute) " to assess the compensation to be paid [for the land taken] or the amount of damages for said taking, if any." The respondent demurred thereto on the ground that, as section 2167 provides for three appraisers, it is entitled to have the assessment so made instead of by a state referee.

Section 5069 of the General Statutes is relied on for justification of the prayer as made. This statute reads: " The determination of the amount of damages in any case brought by the state to condemn land or any interest therein shall be referred to a state referee." It originated as chapter 185, Public Acts of 1929, which was identical in wording with the present section. Section 2167 was adopted as chapter 265, Public Acts of 1915, and appears as sections 2178, 2179, and 2180 of the Revision of 1918; in the Revision of 1930 the three sections were consolidated into one.

The single question presented by the demurrer and by this appeal is whether the provision in section 2167 for three appraisers is to be disregarded as repugnant to the pro- visions of section 5069, which was passed at a later date. In the solution of this problem regard must be had for the established applicable general principles, including that two statutes are to be regarded as irreconcilably repugnant only when both cannot reasonably be given effect. Leete v. Griswold Post, 114 Conn. 400, 405, 158 A. 919.

Section 5069 by its terms is made applicable to " any case brought by the state" to condemn land or any interest therein. Section 2167 prescribes that determination of damages as provided in that section shall be on application of the state park and forest commission. The general power of the commission under sections 2166 and 2167, to which the present procedure is auxiliary, is to take land the rights therein " in the name of the state and for the benefit of the public." The compensation awarded is paid by the state " upon the order of the comptroller *** out of any appropriated funds available therefor" or held on deposit by the treasurer of the state to the order of the person or persons entitled thereto. General Statutes, § 2167. Therefore, the commission brings the application as the designated representative of the state and not as individuals or in an independent capacity, and the award becomes, upon its rendition, an obligation of the state. The state is the real party in interest. Baxter v. Camp, 71 Conn. 245, 248, 41 A. 803, 42 L.R.A. 514, 71 Am.St.Rep. 169. The joinder of the state with the commission as a named applicant in the present instance was not inappropriate, although not deemed to be of controlling significance. Reason indicates that the proceeding may fairly be regarded as " a case brought by the state."

By way of authority deducible from decided cases, those involving the question of whether a suit is one against a state within the Eleventh Amendment of the Federal Constitution appear to afford the closest and most helpful analogy. There is no discernible distinction between the tests applicable thereto and those determinative of whether an action is one brought by the state. Either question is to be decided, not by the nominal party on the record, but by the effect of the judgment or decree which can be entered. Minnesota v. Hitchcock, 185 U.S. 373, 386, 22 S.Ct. 650, 46 L.Ed. 954; Harkrader v. Wadley, 172 U.S. 148, 19 S.Ct. 119, 43 L.Ed. 399; Arbuckle v. Blackburn, 113 F. 616, 51 C. C. A. 122, 65 L.R.A. 864. " The state is the real party when the relief sought is that which inures to it alone, or when the action will have the effect of depriving the state of funds or property in its possession." Western Union Telegraph Co. v. Andrews (C. C.) 154 F. 95, 106. Both of these tests are met in the instant case; the land taken by condemnation inures to the state, and the damages awarded must be paid by it.

We conclude, therefore, that the present proceeding is within the meaning and scope of section 5069, and we do not understand the respondent to contend that this section would not be applicable and controlling but for the inconsistent provision in section 2167, which was not expressly repealed by the act of 1929, and has been retained it the Revision of 1930. As between the two provisions, of themselves, we find no difficulty in holding that the provision for assessment by three appraisers then contained in section 2178 of the General Statutes, 1918, would be superseded and impliedly repealed by the later act of 1929, now section 5069. Formerly awards or assessments or reassessments of damages or compensation for land taken by condemnation by or for the state were uniformly required by various statutes (including section 5186 [1918] and section 2178 [1918], supra and section 1502 [1918] for reassessment...