147 A. 126 | Conn. | 1929
The applicable part of the Act upon which the petition in this action is based we quote in the footnote.* 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 or 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 *626 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 from 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 *627
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, §§ 2638 and 2639. The land for which the appropriation in the Act before us is made is to provide additional area for the site of the sanatorium at East Lyme. The public purpose is manifest. It meets the tests we applied in Connecticut College for Women
v. Calvert,
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 takenin 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,
The authority to condemn will be strictly construed in favor of the owner of the property taken and against the condemnor and the authority must be strictly pursued. 2 Lewis on Eminent Domain (3d Ed., 1909) §§ 387, 388; In re Poughkeepsie Bridge Co.,
The Supreme Judicial Court of Massachusetts, inBoston Lowell R. Corp. v. Salem Lowell R. Co., 68 Mass. (2 Gray) 1, 36, 37, expressed the controlling principle in these terms: "It must appear that the government intends to exercise this high sovereign right, by clear and express terms, or by necessary implication, leaving no doubt or uncertainty respecting such intent. It must also appear, by the Act, that they recognize the right of private property, and mean to respect it; and under our Constitution, the Act conferring the power must be accompanied by just and constitutional provisions for full compensation to be made to the owner."
In the Act under which this proceeding was brought the sum of $35,000, or so much thereof as may be necessary, *631 is appropriated. If just compensation for the land taken exceeds the amount appropriated, no means of meeting the excess is provided in the Act or in the general law. This falls short of the indispensable requirement that the statute must conform to the constitutional requirement. Appealing to the known resources of the State does not provide the just compensation which the Act must provide. Constitutional provisions must be followed; they cannot be ignored.
In Connecticut River R. Co. v. County Commissioners,
The Act does not make another statute providing a procedure for obtaining compensation a part of it directly or by reference. Nor is there any general law of the State prescribing the method for ascertaining just compensation. General Statutes, § 5186, is not applicable. In Thomson v. New Haven,
Given no procedure to follow and no method for determining the just compensation to be awarded for the land to be taken, the attorney appointed to carry *633 out the purposes of this Act instituted this action apparently upon the theory that he might adopt the procedure specified in § 5186, but prayed, only, that the amount to be paid the owners of this land might be determined. The trial court under this prayer and with no procedure outlined in the Act rendered its judgment in the usual form when a proper procedure is outlined in the Act of condemnation and appointed a committee to assess in favor of the owners of the land just compensation for the taking and report its doings to the court. Neither the attorney nor the trial court acted within their authority, for no valid taking by eminent domain was given by this Act. Its purported grant of authority to acquire by condemnation proceedings the land described in the Act was wholly inoperative. Its further grant authorizing the acquiring of the described land by purchase or the agreement of the parties in interest was a valid grant of authority and operative. 2 Lewis on Eminent Domain (3d Ed., 1909) § 673, states the principle involved with accuracy we believe when it says: "Statutes which provide for a condemnation of private property, and fail to provide compensation therefor, have sometimes been spoken of as void. This is probably, however, a mere inadvertence of expression. Such Acts would simply be inoperative so far as the power to condemn property is concerned, but might be carried into execution by the purchase of the requisite property, or aided by a subsequent Act supplying the defect."
The tuberculosis commission — in fact the directors of a State institution — desiring to take property when it cannot agree with the owner upon the amount to be paid him for the property have authority under § 5186 to prefer its petition to the Superior Court in the name of the State and have the matter determined *634 in accordance with the procedure outlined in that section. We are without judicial power to conclude that an Act of condemnation can be legally operative which ignores the time honored judicial procedure for taking property by eminent domain and provides no means for determining just compensation for the property taken.
Subsequent to the overruling of their demurrer to the complaint the defendants filed an answer. The plaintiff filed its motion to strike out the allegations of the answer which were new matter, because ten of the paragraphs of the answer are legal conclusions or repetitions of averments in the demurrer to the complaint, and because eighteen paragraphs and part of another paragraph are irrelevant, immaterial and frivolous. Thereafter the plaintiff filed a demurrer to the ten paragraphs averred in the motion to be legal conclusions upon the same ground and as to the other nineteen paragraphs of the answer referred to in the motion as irrelevant, immaterial and frivolous, it demurred because the court had already decided that the Act under which these proceedings are brought determined the necessity for the taking, leaving the sole question for judicial determination the compensation to be paid as to which these paragraphs of the answer have no bearing. The demurrer was rightly sustained as to paragraphs one, two, three, four, twenty-six, the last half of twenty-eight, twenty-nine, thirty-two, thirty-four and thirty-five. Legal conclusions have no place in an answer.
To pass upon the demurrer to the other paragraphs requires us to give a summary of their allegations which we regard as relevant to several defenses which they apparently raise: The petition alleges and the defendants admit that the State owned on June 25th, 1925, and ever since has owned certain land and buildings *635 in East Lyme as the site of a tuberculosis sanatorium, an institution used and operated for the benefit of the public of the State. The answer alleges that the land sought to be taken has a frontage of about four hundred and fifty feet on a sandy beach on the shore of Long Island Sound, suitable for a bathing beach, and indispensable to the use and enjoyment of the property and the chief element in its value. The taking of three hundred and ninety-one feet of the beach would greatly lessen the value of the entire tract and cut off access from the remaining property to the beach and destroy its value as shore property. In 1918 the State acquired an old wooden structure formerly used as a hotel located on land adjoining that sought to be taken; these are used for the treatment of children afflicted with glandular and bone tuberculosis. The land of the State is four hundred feet in depth and amply sufficient to accommodate a large fireproof sanatorium building. It has ninety-seven feet of frontage on a broad sand beach and is adapted for a bathing beach and for other purposes of the sanatorium and amply sufficient for all of its needs. For a long time prior to the institution of this action other property in this vicinity fronting on a bathing beach has been and now is available by purchase. The defendants since the State acquired this property have been and still are willing that the children in the sanatorium should use their bathing beach and the children have used it both above and below high-water mark. In 1923 this commission in asking the General Assembly for an appropriation represented that its land was ample for this fireproof building. The appropriation was then granted, but the building has never been begun. On June 14th, 1922, a member of the commission wrote in its behalf to one of the defendants asking if it were possible to purchase any part of their *636 property and in reply defendants notified him their property was not for sale. At the opening of the session of the General Assembly in January, 1923, a bill was introduced authorizing the commission to buy all of defendants' land, and if unable to agree with the owners, authorizing it through the Attorney General to condemn the same in the name of the State, and directing him to proceed as provided in § 5186 of the General Statutes and appropriating $100,000, or so much thereof as may be necessary, to carry out the provisions of this Act. The bill was rejected. Subsequently a substitute bill was reported to the House of Representatives directing the commission to purchase a part of defendants' land, being about one half of its area and one half of the beach frontage; in the event that the commission should be unable to agree with the owners, directing it through the Attorney General to institute condemnation proceedings to acquire the described land under the provisions of § 5186. The substitute bill failed of passage. Meanwhile an appropriation bill was passed and approved appropriating $25,000 for the purpose of acquiring land adjoining the site of the sanatorium and directing the commission to acquire in the name of the State such land as the commission may require for such purpose. This bill has never been repealed and is now in full force. During the session of the General Assembly of 1923, the commission made an agreement with defendants, through the medium of the Governor, that, without monetary consideration, they would deed to the State not more than sixty feet in width of the land sought to be condemned, upon the express condition proposed by the commission that it would refrain from attempting thereafter by condemnation proceedings to acquire any of defendants' land. The agreement is embodied in a letter of March 19th, 1923, from the *637 commission by its chairman to the Governor, which states: "1. If the owners of the McCook property at Niantic, will sell to the State the small section of their property, approximating fifty feet wide that adjoins the Seaside and that lies west of the ravine on the McCook property, they will greatly facilitate our planning for our new construction at the Seaside. This small knoll of land has been by nature separated from the main part of the McCook property." "2. We commit ourselves to refrain from attempting by any condemnation proceedings or other forcible measure for securing for the State this or any other portion of the McCook property."
The defendants' reply of April 16th, 1923, accepted the proposal of the commission and submitted a draft of a deed which the then executor stated he was willing to execute for the benefit of the State, upon authorization by the General Assembly. The deed grants a tract sixty feet in width instead of fifty as proposed by the commission. The letter states: "We decline, however, to accept any monetary compensation, since from the outset we have had just one purpose — to defend ourselves from aggression. . . . Finally, since it is not a question of dollars and cents with us, let me point out that the only consideration for the deed is that embodied in the commission's proposal, namely freedom in future from molestation." The above reply was transmitted to the commission whose chairman and members were then and now are the same. The agreement was consummated before the bill of June 2d 1923, was passed and approved.
In the latter part of 1924 the Attorney General instituted, in the name of the name of the commission and the comptroller of the State and at their direction, an action against one of the defendants as executor of the will of Eliza A. McCook to condemn a *638 portion of defendants' land having a frontage on the beach of about two hundred feet. This action was withdrawn by the Attorney General by direction of the commission on September 17th, 1925, the day before the present action was begun. Prior to the action begun in 1924 the commission voted, in order to carry out the purposes of the Act of 1923, that the commission required the land proposed to be condemned in the action of 1924. This vote is still in effect.
At the session of the General Assembly of 1925, after the expiration of the time limited for the presentation in the House and Senate of bills and resolutions, the Committee on Humane Institutions, without notice or hearing, originated and reported to the House of Representatives on May 14th, 1925, a bill authorizing the commission to employ an attorney under the Act of 1923, to acquire land for the tuberculosis sanatorium and making an appropriation of $3000 to carry out the Act. The bill was on June 2d 1925, rejected.
On May 27th, 1925, the Committee on Appropriations, without notice, citation or hearing, reported the bill which is the Act upon which the present action is based. The bill was prepared outside of the committee and was not introduced and referred in the usual way. It passed both Houses on June 1st, 1925, but was not signed by the Governor before the final adjournment of the General Assembly on Wednesday, June 3d 1925, nor within three days, Sundays excepted, after the final adjournment thereof and not until nineteen days thereafter. No attempt was made by the attorney appointed under this Act to agree with the defendant owners as to any terms of conveyance or compensation, nor has the commission communicated with defendants except through the medium of condemnation proceedings since the making of the above agreement.
The defendants at all times have been and now are *639 willing, have offered and now offer, to convey to the State in accordance with the terms of the agreement the sixty feet of land referred to in the agreement.
The court sustained the demurrer, holding that the sole question at issue was the determination of the compensation to be paid and that the new matters alleged in these paragraphs have no bearing upon the determination of that. The defendants renewed in their answer a ground of their demurrer to the complaint that the Act was not signed by the Governor until nineteen days after the final adjournment of the General Assembly on June 3d 1925. The court was justified in ignoring a defense which had already been adjudicated on demurrer.
The defendants also claim that these allegations of the answer show that the taking is not in good faith and is an abuse of power and unreasonable. They claim further in defense that the history of this matter discloses a line of pursuit which is nothing less than vexatious. These claims are based upon a principle of law which this court fully recognizes. We express in Water Commissioners v. Johnson,
There was too, upon the allegations of the answer. an opportunity to claim bad faith in these proceedings because of the breach of a claimed legal agreement by which the defendants agreed to give to the State a strip of land sixty feet in width and of the depth of the tract claimed to have been taken upon consideration of the agreement of the commission to refrain from attempting by any condemnation proceedings to secure for the State either the sixty foot strip or any other portion of the defendants' property. Again we find no occasion at this time to pass upon this question of good faith on the part of the State tuberculosis commission, but certainly the defendants are entitled to establish these facts by proof, if they can, and then to have the opportunity of making all reasonable claims of law upon the facts proven.
The history surrounding this matter presents a very unusual and even an extraordinary situation which the trial court ought to have disposed of upon the merits before granting the relief prayed for.
There remains the constitutional question raised by defendants' demurrer to the complaint and renewed in their answer, that the Act is void because not approved by the Governor until nineteen days after the final adjournment of the General Assembly. The provision of the Constitution which defendants urge was violated by the approval of this Act more than three days after the final adjournment of the General Assembly is § 12 of Article Fourth, which reads: "Every bill which shall have passed both houses of the General *641 Assembly, shall be presented to the Governor. If he approves, he shall sign and transmit it to the Secretary, but if not, he shall return it to the house in which it originated, with his objections, which shall be entered on the journals of the house; who shall proceed to reconsider the bill. If after such reconsideration, that house shall again pass it, it shall be sent, with the objections, to the other house, which shall also reconsider it. If approved, it shall become a law. But in such cases the votes of both houses shall be determined by years and nays; and the names of the members voting for and against the bill, shall be entered on the journals of each house respectively. If the bill shall not be returned by the Governor within three days, Sundays excepted, after it shall have been presented to him, the same shall be a law in like manner as if he had signed it; unless the General Assembly, by their adjournment, prevents its return, in which case it shall not be a law."
It must be conceded that the construction of the last six lines of this section presents a difficult problem. The State insists that the practical construction accorded this language by all of the Governors since 1919 in signing both Public and Special Acts more than three days after the final adjournment is strongly indicative that this course was the correct one. It is true that "long settled and established practice is a consideration of great weight in a proper interpretation of constitutional provisions of this character." Okanogan,etc., Indian Tribes v. United States,
No instance has been presented to us, and we find none, where the approval of laws is made subject, as to the time of approval, to the unlimited discretion of a Governor. No Constitution of any of our States commits to the unlimited discretion of the Governor such a determination. Under a constitutional government the law of the land can never be dependent upon the unrestricted discretion of any official, be the office he holds ever so high. The fact that no Governor has taken longer than sixty days in which to perform his constitutional duty in signing bills after the final adjournment of our General Assembly and that Connecticut people can trust to our Governors not to abuse their power, is a species of protection against abuse of power which neither our Constitution nor our law can recognize.
The final consideration which the State presses upon us is that if this constitutional provision is so construed as to prevent the signing of bills by the Governor more than three days after the final adjournment of the General Assembly very many Special Laws under which public and private corporations and individuals have trustfully acted will be voided. No court could fail to realize the consequences such a *644 construction would involve, and that realization would lead it to give the most careful investigation and its best thought to a matter of this character. If the conclusion reached could not avoid these disastrous consequences it would but declare the voice of the law, although it would have no part in the responsibility of having aided in the creation of the situation which it would deeply deplore.
We turn now from a discussion of the claims of the State to a discussion of those of the defendants. This constitutional provision was undoubtedly drafted from the similar provision found in § 7 of Article First of the Constitution of the United States; the characteristic differences in the two provisions are in the period provided for the return of bills, ten days in the Federal Constitution against three in the State Constitution, and in the provision requiring in the Federal Constitution two-thirds of each house to pass a bill which the President has returned for reconsideration, while our State Constitution requires a majority only to pass a bill over the Governor's veto.
There is no Federal decision of the United States Supreme Court upon the precise point we are considering. It has been held that an Act of Congress presented to the President while Congress was sitting and signed by him when Congress was in recess for a specified time, but within ten days, Sundays excepted, after it was so presented to him, immediately upon its signing became a law. La Abra Silver Mining Co. v. UnitedStates,
The practical construction placed upon the Federal Constitution corresponds with that which was accepted and followed unquestioned, as to our related constitutional provision, certainly up to 1919. In view of the language of Okanogan, etc., Indian Tribes v.United States, supra, it may well be questioned whether the Supreme Court of the United States will give it approval to the practice inaugurated by President Wilson. However, we think it cannot be doubted that it will not construe this section of the Federal Constitution so that it may grant to the President the power to sign bills more than ten days after the final adjournment of the Congress.
The provisions of the constitutions of three of the States are so similar to the provision of our own Constitution under consideration as to make decisions thereunder of pertinent applicability. In Illinois the provision is as follows: "Unless the General Assembly shall, by their adjournment, prevent its return; in which case, the said bill shall be returned on the first day of the meeting of the General Assembly after the expiration of said ten days, or be a law." In SevenHickory v. Ellery,
In his opinion in People v. Bowen,
The reading of the debates of the Connecticut Constitutional Convention of 1902, page 2283 et seq., fairly indicates that neither that body nor the eminent lawyers and distinguished publicists among its membership entertained the idea that the Governor had power to sign bills more than three days (Sundays excepted) after the final adjournment of the General Assembly. It is interesting to note that Attorney General Phelps failed in his attempt to substitute for "days" in this provision "legislative days." Later this court by its construction gave to "days" in the case *648
then before it the meaning "legislative days." State exrel. Corbett v. South Norwalk,
We leave the discussion of the constitutional point *649 involved with a brief presentation of two considerations which are of most serious import. If the Governor has power under the Constitution to determine the precise moment when each and every Act, presented to him and unsigned by him within three days of the final adjournment of the General Assembly, shall become effective as a law, grave public abuse might follow the possession and use of this extraordinary power.
From 1850 down to the present time the General Assembly has designated the day when Public Acts shall become laws. Its power so to act has never been, as far as we can discover, publicly challenged. If the Governor can determine by his own will when Public Acts shall become laws his will override the long-exercised power of the General Assembly. Their exercise since 1850 of this power is compellingly suggestive of a legislative construction as denying to the Governor the power to sign Acts of the legislature at any time at his discretion and as construing the Constitution as denying him the right to sign legislative Acts more than three days after the adjournment of the General Assembly. The construction accorded this provision of the Constitution, in conformity with the long-settled practice of the executive and legislative departments of our government, is not only convincingly persuasive, but almost controlling upon the construction to be given the same constitutional provision by the judicial department.
We have thus considered the chief arguments in favor of the construction giving to the Governor the power to sign bills presented to him, after the three-day period, and those opposed to according him this power. We recognize the gravity of the public situation if the Governor is denied this power, but we are obliged to hold, for the reasons stated, that Acts signed after the three-day period, whether Public or Private, *650 are void. The burden imposed upon the Governor of having a very considerable percentage of all bills passed at the session of the General Assembly presented to him after its final adjournment — many of these the most important of the session — literally prevents his fair consideration of the merits of this mass of legislation within the constitutional three-day period. If he signs all of these bills the people may be deprived of the Governor's considered view of these measures and the constitutional check upon hasty, ill-considered and publicly inimical legislation removed by the pressure of the burden placed upon the Governor. On the other hand, bills which the Governor does not sign, however meritorious they may be, will fail to become laws. The avoidance of this untoward public situation is neither hard to see nor difficult to enforce. A better distribution and a prompter disposition of the business of the General Assembly and the avoidance of leaving the most important bills to the closing days of the session will not only relieve the Governor from the burden of a duty which is impossible of proper performance, except under most exceptional circumstances, but will also tend to give the General Assembly the opportunity for more extended consideration of important measures. A recess taken by the General Assembly, after it is through with its business, of ten days, would give the Governor the opportunity of fairly considering bills presented to him, and give the General Assembly the opportunity of reconsidering bills returned to it disapproved of by him. This course would not conflict with the power of the Governor in signing bills within the period prescribed by the Constitution after the final adjournment of the General Assembly.
There is error, the judgment is set aside and the Superior Court directed to enter judgment overruling