State v. McCook

• Decision Date: 25 July 1929
• Citation: 147 A. 126,109 Conn. 621
• Court: Connecticut Supreme Court
• Parties: STATE v. MCCOOK ET AL.

147 A. 126

109 Conn. 621

STATE v. MCCOOK ET AL.

Supreme Court of Errors of Connecticut.

July 25, 1929

Appeal from Superior Court, New London County; Christopher L. Avery Newell Jennings, and John Richards Booth, Judges.

Petition by the State of Connecticut against John B. McCook and others, executors, praying that the amount to be paid the owners of land taken by the state pursuant to the Act approved June 22, 1925 (19 Sp. Laws, p. 862), be determined brought to the superior court in New London county, where a demurrer to, and a so-called motion to quash, the petition was overruled (Avery, J.); thereafter a motion to strike out the answer was denied (Jennings, J.), and a demurrer to the answer sustained (John Richards Booth, J.). The defendants refusing to plead over, judgment was rendered appointing a committee to ascertain the value of the land proposed to be taken, and assess just compensation therefor to the owners and make report thereof to the court; and appeal by the defendants. Error, and judgment directed.

Hugh M. Alcorn and Charles Welles Gross, both of Hartford, for appellants.

Arthur M. Brown, of Norwich, for appellee.

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

WHEELER, C.J.

The applicable part of the act upon which the petition in this action is based we quote in a footnote.^[1] It is designated by the state as a special act and is printed among the Special Acts. If the purpose of the act is to provide for the acquiring of land for the tuberculosis sanatorium at East Lyme, it is, as we would take judicial notice, a public act, since the sanatorium is an institution of the state for the care and alleviation of all persons within the state afflicted with tuberculosis, without discrimination.

Neither in form nor substance does this act resemble the ordinary grant of the exercise of the power of eminent domain. The petition presumably assumes the legislative determination as to the taking of the land described in the act and the necessity therefor. It does not pray for the appointment of a committee to determine the just compensation to be paid for the land taken, but prays that the amount to be paid to the owners of the land be determined. The judgment recites that the action came to the court for the appointment of a committee to determine the amount to be paid the owners of the land and the appointment of the committee, together with a specification of their duties.

The petition merely recites the possession and occupation of certain land and buildings as the site of a tuberculosis sanatorium, an institution used and operated by the state for the benefit of the public of the state; the terms of the act, the location of the land described in the act as adjoining the land of the state, and that it is necessary for the use of the sanatorium; the appointment by the Governor under the act of an attorney for the purpose of carrying into effect the provisions of the act, and that the attorney cannot agree with the owners upon the amount to be paid them. The demurrer to the petition raises most of the questions which are contained in the reasons of appeal. The defendants appellants place the greatest emphasis upon their claim that this act is not an exercise of the power of eminent domain, but is solely an appropriation act coupled with the appointment of an attorney to carry out the provisions of the act. In form the act purports to be an appropriation act. It does not contain an express provision for the taking, as is usual, nor an express declaration of the necessity for the taking, nor one that it is to serve a public use. It does not provide a method of procedure for ascertaining, either by the terms of the act or by reference to the procedure designated in another act, the just compensation to be paid for the land. It appropriates $35,000, or so much as may be necessary, for the acquiring by condemnation or otherwise of about five acres, which it specifically describes, thus limiting the maximum of the award in the condemnation proceedings to the amount named. While it authorizes the appointment of an attorney for the purpose of carrying out the purposes of the act, it does not provide for him a procedure of action, nor authorize him to secure the appointment of a committee by a proper court to determine the just compensation to be paid for the land taken.

Considerations such as these go far in support of the defendants' contention that this act is nothing more than an appropriation act. As we analyze this act, anomalous as it is, we find in two essential particulars that it says by necessary implication that which the defendants insist the act must assert by express declaration. These distinguish it from an appropriation act, and characterize it as an act in the exercise of the power of eminent domain. The specified purpose of the act is the acquiring by condemnation or otherwise of described land for the tuberculosis sanatorium at East Lyme. This is an institution of the state under a state commission, engaged in the public work of establishing homes for the care and treatment of persons suffering from tuberculosis, and as necessity arises charged with the duty of erecting in locations of their designation sanatoria for the care and treatment of such persons. General Statutes 1918, § § 2638, 2639. The land for which the appropriation in the act before us is made is to provide additional area for the site of the sanitorium at East Lyme. The public purpose is manifest. It meets the tests we applied in Conn. College for Women v. Calvert, 87 Conn. 421, 88 A. 633, 48 L.R.A. (N. S.) 485, since the purpose is public or governmental in its nature, and the institution is administered for the benefit of the public without discrimination. The legislative appropriation is for the specified public purpose of acquiring by condemnation or otherwise a fully described and specified tract of land for the site of the already established sanatorium. This constituted a legislative determination to take this land and of the necessity for the taking.

The determination of the necessity must be made by the Legislature, either itself or by some body or persons to whom it delegates its own power of making this determination. Water Com'rs v. Johnson, 86 Conn. 151, 157, 84 A. 727, 41 L.R.A. (N. S.) 1024. Under the general practice the Legislature determines that there is necessity for the exercise of the power of eminent domain; but it may, as it has power to do, designate the particular property or rights to be taken. Nichols on Eminent Domain (1907 Ed.) vol. 1, § 333. In Water Commissioners v. Johnson, supra, we say: " In the present case the Legislature determined the question only to the extent of deciding that there was a necessity which justified the grant of power made. It did not, as it occasionally does, go further, and designate any particular source from which the city's water supply might be drawn, or the defendants' properties and rights as being subject to appropriation, and thus, either directly or indirectly, pass upon the question of a taking of the waters of Stony Brook, or of an appropriation of the defendants' particular properties."

When the property to be taken, or its location, or source, is designated within reasonable bounds, the legislative designation is final. The exercise of this power is political in character. " This determination is conclusive unless and until it is successfully attacked for unreasonableness, bad faith, or abuse of power." Water Commissioners v. Manchester, 89 Conn. 671, 96 A. 182, 185; Water Commissioners v. Johnson, supra, at page 159, of 86 Conn. (84 A. 730). Every taking in invitum of private property is subject to judicial determination whether the taking falls within the prescribed limitation--whether in truth it is founded upon public necessity. The occasion for the exercise of this power, the exigency of the occasion, and the necessity are for the Legislature, as well as the determination of whether the public welfare requires or justifies its exercise; but, when the taking has been ordered, the fixing of the compensation is a judicial question. Enfield Toll Bridge Co. v. Conn. River Co., 7 Conn. 28. " The characteristics of such an act of appropriation are known and well understood. It must appear that the government intended to exercise this high sovereign right, by clear and express terms, or by necessary implication, leaving no doubt or uncertainty respecting such intent." Boston & L. R. R. Corp. v. Salem & Lowell R. Co. and others, 2 Gray (Mass.) 1, 36, 37. The purpose in the act before us is the acquiring by condemnation of a defined tract of land for a state institution, which is open to the public without discrimination. The intention of the Legislature to take this land and its intention that its legislative act should express the necessity for the taking are, as it seems to us, as necessarily implied as though they had been directly expressed in suitable words.

These conclusions make it impossible to hold this act to be a mere appropriation act.

Two other attacks are made upon the validity of this act as an exercise of the power of eminent domain. In taking these up we should have before us certain principles which are applicable to all statutes which provide for the taking of land by right of eminent domain. " Where the land of an individual is taken in invitum for public use, under the provisions of positive law, every requisite of the statute must be complied with, and this must appear on the face of the proceedings for taking the land." Crawford v. Bridgeport, 92 Conn. 431, 435, 103 A. 125, 126.

The authority to condemn will be strictly construed in favor of the owner of the property taken and against the...