283 F. 95 | 2d Cir. | 1922
(after stating the facts as above). Plaintiff certainly had an interest in the lands condemned, and its action is for damages to that interest. It rests on the alleged unlawful act of defendant in failing to give notice or opportunity to assert its right to the plaintiff pursuant to the statute. The judgment below is in effect a holding thqt under the allegations made it is impossible, on benevolent reading of the complaint, to discover any recoverable damage.
Yet it is equally plain that, if defendant was bound by the provisions of Gen. Stat. § 5192, it failed in a duty imposed by law, and plaintiff should have opportunity to show a jury that damage to it— i. e., to its interest in the Glastonbury property — was thereby proxiraately caused. On demurrer we cannot speculate as to whether damages are likely to be provable.
The judgment complained of is sought to be justified by the assertion that the act imposing obligation on one exercising eminent domain to give notice to the mortgagors and lienors of record is a general statute, whereas the defendant possessed and exercised its power of condemning the Cold brook lands wholly by virtue of “special acts,” and therefore the general statute has no.application.
It is not and cannot be asserted that the Legislature may not affect or modify special acts by general statutes; but this, it is said, requires specific reference to them. The language of the general statute in force when condemnation begun is that whoever takes by eminent domain “under any statute of this state” shall do the thing which this defendant did not do; and we are of opinion that the phrase “any statute of this state” covers and includes all statutes of Connecticut, whether denominated general or special, public or private.
A statute or statute law is by long-accepted definition the express written will of the Legislature, rendered authentic by certain prescribed forms and solemnities. Potter’s Dwarris, 37. Cf. Lewis’ Sutherland on Statutory Construction, § 321 et seq.; Bishop on the Written Law, § 42a et seq., and Bouvier, tit. “Statutes.”
A “statute of a state” is any law directly passed by the Legislature of that state (Cumberland, etc., Co. v. Memphis [D. C.] 198 Fed. 955 (957); and any enactment to which a state gives the force of law is a statute of the state (Atlantic, etc., Co. v. Goldsboro, 232 U. S. 548, 34 Sup. Ct. 364, 58 L. Ed. 721).
Historically the phrases “special act” and “private act” mean the same thing; and in Unity v. Burrage, 103 U. S. 447, 455 (26 L. Ed. 405) it was pointed out that such acts or statutes as those incorporating counties, establishing courthouses and the like “all operate upon local subjects, [but] they are not for that reason special or pri
Nor does the fact that a given statute affects only a portion of the territory under the Legislature’s dominion influence the matter at all, if the statute affects all of the population within the limited area. Lewis’ Sutherland, supra, and cases cited. Finally, whether a law be local, or otherwise entitled to some peculiar appellation, is a question of fact, and .not of form. Gray v. Taylor, 227 U. S. 51, 33 Sup. Ct. 199, 57 L. Ed. 413.
For these reasons, while inclined to think that the special acts giving to defendant the power of eminent domain are public acts in fact, we hold that they are plainly statutes of Connecticut, and therefore within the phrase “any statute of this state.”
It appears to have been held below as another reason for sustaining demurrer that there was nothing “due” to this plaintiff at the time of condemnation. But the word “due,” as applied to debts, is sometimes used to express the mere state of indebtedness, and it is then equivalent to “owed” or “owing” (United States v. State Bank, 6 Pet. 29, 8 L. Ed. 308); and the word in its larger and general sense signifies that which is owed, that which one contracts to pay to or perform to another (Wyman v. Kimberly-Clark Co., 93 Wis. 554, 556, 67 N. W. 932, with full citation of authorities).
We are clear that the word “due,” as used in this statute, imports existing obligations or indebtednesses of record, without regard to maturity; if it were otherwise, the statute would wholly fail of its obvious purpose, which is to prevent exactly the condition of affairs that here exists. For these reasons, the judgment must be reversed, and the defendant required to answer over on payment of costs and within a time to be fixed by the lower court.
For the sake of accuracy it should be pointed out that, while defendant’s whole case has hitherto rested upon the assertion of rights under private acts or special acts, the case has been treated as though the acts in question were general and public, for the court has taken cognizance of them on demurrer without pleading or proof. Observance of the fundamental rule that acts, if really private, must be pleaded, would have prevented a journey to this court on general demurrer. /
As trial before a jury would be the natural result of this decision, we point out again that the action is for damages to the plaintiff’s estate or interest by the appropriation of certain mortgaged lands without compensation to it. Like all damages, they must be proved, and not presumed. This is not an action for debt. Non con-stat but that the remaining lands are amply sufficient to satisfy plaintiff’s mortgage lien.
Judgment reversed, with costs, and case remanded, with directions to proceed in a manner not inconsistent with this opinion.
