State v. Heller

Decision Date21 December 1937
Citation196 A. 337,123 Conn. 492
CourtConnecticut Supreme Court

Appeal from Criminal Court of Common Pleas, Fairfield County; John T. Dwyer, Judge.

No error.

William Hanna, of Danbury, for appellant.

Richard S. Swain, Pros. Atty., of Bridgeport, for the State.


BROWN Judge.

The information charged that the defendant on or about July 11 1936, at Easton, bathed in a stream tributary to a reservoir from which the inhabitants of Bridgeport are supplied with water, in violation of section 2542 of the General Statutes. That statute so far as relevant provides: ‘ Any person who shall bathe in any reservoir from which the inhabitants of any town, city or borough are supplied with water, or in any lake, pond or stream tributary to such reservoir,’ shall be subject to fine, imprisonment, or both. The defendant's demurrer to the information was overruled. He thereupon elected to be tried by the court, and it found him guilty.

These facts are undisputed: On July 11, 1936, the defendant owned in fee simple a tract of land in Easton comprising about 38 acres, on which was a dwelling house occupied by him and his family. Ball Wall brook flows across this land, forming a small pond thereon, and runs on into the Aspetuck reservoir about 4200 feet away, from which by connecting pipe water flows into the Hemlock reservoir. These reservoirs are part of the Bridgeport Hydraulic Company's system, from which Bridgeport and other municipalities are supplied with water. Ball Wall brook is, and ever since before the defendant's purchase of his property has been, a stream tributary to both of these reservoirs. The distance from the place where it enters the Aspetuck reservoir to the pipes leading from the reservoir to the municipality is over 3 1/2 miles. The combined area of the reservoirs when full is about 500 acres. On July 11, 1936, the accused bathed in Ball Wall brook at a place within the boundaries of the 38 acre tract owned by him, and was arrested and charged with a violation of section 2542 of the General Statutes.

The fundamental question determinative of the appeal is whether section 2542, as applied to the defendant in forbidding his bathing pursuant to his property right in a brook flowing through his own land, is a valid exercise of the State's police power, or is unconstitutional as depriving him of property rights without compensation. It is unquestioned that the defendant as riparian owner had a right which included ordinary and reasonable bathing privilege in this brook by himself, his family, and inmates and guests of his household. Harvey Realty Co. v. Wallingford, 111 Conn. 352, 359, 150 A. 60. It is further undisputed that section 2542 can only by sustained as an exercise of the State's police power. Furthermore, it is not disputed that the object of the statute in question is to protect the health of citizens using water distributed through these reservoirs, and that thus its purpose affords a proper basis for the exercise of the police power inherent in the Legislature. State v. Racskowski, 86 Conn. 677, 680, 86 A. 606, 45 L.R.A.N.S., 580, Ann.Cas.1914B, 410; 1 Farnham, Waters and Water Rights, p. 618, § 137a. The issue for determination, therefore, is reduced to the sole question of whether or not this exercise of the police power for the purpose indicated is so unreasonable as to violate the provisions of section 11 of article first of the Constitution of the State of Connecticut or section 1 of article 14 of the Amendments to the Constitution of the United States.

The foundation of the police power of a State is the overruling necessity of the public welfare. Thus it has been referred to as that inherent and plenary power which enables the State ‘ to make and enforce rules and regulations concerning and to prevent and prohibit all things hurtful to the comfort and welfare of society. It has been aptly termed ‘ The law of Overruling Necessity,’ and compared with the right of self-protection of the individual, it is involved in the very right and idea of government itself, based on the two maxims that, ‘ The Public Welfare is the Highest Law,’ and that ‘ One must so use his own right as not to injure that of another.’ ' 1 Bruce, State and Federal Control of Personal and Property Rights, 8. Accordingly all property of every person is owned subject to this power resting in the State. It is an incident of title. Application of St. Bernard & St. Lawrence Cemetery Ass'n, 58 Conn. 91, 96, 19 A. 514. ‘ The power to legislate for the safety, health, or welfare of its people is inherent in the state by virtue of its sovereignty. All property is held subject to this power. Meriden v. West Meriden Cemetery Ass'n, 83 Conn. 204, 207, 76 A. 515. And all property, too, is held upon the implied promise of its owner or user that it shall not be used against the public welfare.’ Connecticut Co. v. Stamford, 95 Conn. 26, 29, 110 A. 554, 555.

It is pursuant to these principles that the State may regulate one's use of his property. ‘ In short, it [the police power] may regulate any business or the use of any property in the interest of the public health, safety, or welfare, provided this be done reasonably. To that extent the public interest is supreme and the private interest must yield. Eminent domain takes property because it is useful to the public. The police power regulates the use of property or impairs the rights in property because the free exercise of these rights is detrimental to public interest. Freund on Police Power, § 511.’ Windsor v. Whitney, 95 Conn. 357, 367, 111 A. 354, 356, 12 A.L.R. 669; State v. Kievman, 116 Conn. 458, 463, 165 A. 601, 88 A.L.R. 962. ‘ The use of property may be regulated as the public welfare demands. * * * Beyond this, private property cannot be interfered with under the police power, but resort must be had to the power of eminent domain and compensation made.’ 1 Lewis, Eminent Domain, 3d Ed., p. 492, § 249. ‘ The protection of the public safety, health, or morals by the exercise of the police power is not within the inhibitions of the Constitution; and, since all property is held subject to such regulation, there is no obligation upon the state to indemnify the owner of property from the damage done him by the legitimate exercise of the police power. Property so damaged is not taken; its use is regulated in order to promote the public welfare.’ Connecticut Co. v. Stamford, supra, 95 Conn. 26, 30, 110 A. 554, 555; State v. Wheeler, 44 N.J.L. 88, 91.

But there are definite limits upon the application of the foregoing principles. ‘ The power of regulation by government is not unlimited; it cannot as we have stated, be imposed unless it bears rational relation to the subjects which fall fairly within the police power and unless the means used are not within constitutional inhibitions. The means used will fall within these inhibitions whenever they are destructive, confiscatory or so unreasonable as to be arbitrary. Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016.’ State v. Hilliman, 110 Conn. 92, 105, 147 A. 294, 299. ‘ A large discretion is necessarily vested in the Legislature to determine not only what the interests of public health, security, and morals require, but what measures are necessary for the protection of such interests. Young v. Lemieux, 79 Conn. 434, 440, 65 A. 436, 600, 20 L.R.A.N.S., 160, 129 Am.St.Rep. 193,8 Ann.Cas. 452.’ Cotter v. Stoeckel, 97 Conn. 239, 244, 116 A. 248, 250. Furthermore, " incidental damages to property resulting from governmental activities, or laws passed in the promotion of the public welfare, are not considered a taking of the property for which compensation must be made." State v. Hillman, supra, 110 Conn. 92, 104, 147 A. 294, 298.

The foregoing principles are established by abundant authority. The difficulty arises in their application, to determine where the proper exercise of the police power ends and that of the other governmental power of eminent domain begins, that is, how far the State can properly go to deprive an owner of valuable rights under the former without compensation, as distinguished from necessary resort to the latter with compensation. The right of the State in the exercise of its police power to limit the use of property even when prejudicial to the pecuniary interests of the owner, has been made increasingly clear by our more recent decisions. Windsor v. Whitney, supra; State v. Hillman, supra; Young v. West Hartford, 111 Conn. 27, 149 A. 205; Rice v. Zoning Board of Appeals of Milford, 122 Conn. 435, 190 A. 257. Whether a statute enacted pursuant to the police power is a means reasonable in quality and extent, and in time, place, and circumstance, presents a question to be determined by the court. Windsor v. Whitney, supra, 95 Conn. 357, 369, 111 A. 354, 12 A.L.R. 669. It is the court's duty in such case, in the exercise of great care and caution, to make every presumption and intendment in favor of the validity of the statute, and to sustain it unless its invalidity is beyond a reasonable doubt. Beach v. Bradstreet, 85 Conn. 344, 350, 82 A. 1030, 1032, Ann.Cas.1913B, 946; State v. Lay, 86 Conn. 141, 145, 84 A. 522; State v. Muolo, 119 Conn. 323, 325,175 A. 401. It is in the light of the principles above stated that we must determine whether the provisions of section 2542 are so unreasonable as to constitute an unconstitutional invasion of the defendant's rights.

The defendant claims the statute is invalid in that its unlimited scope constitutes an unreasonable exercise of the police power, it being contended that it goes far beyond what is necessary to accomplish the...

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