Reiley v. City of Waterbury ( 1920 )

The sum of $700, which the plaintiffs seek to recover, is the amount ascertained and fixed in February, 1917, in the manner prescribed by the defendant's charter, as the amount of damages due to them for the defendant's taking of a portion of their land for the layout and construction of a public street. Were it not for certain language contained in § 1 of Chapter 322 of the Special Acts of 1905 (14 Special Laws, p. 773) amendatory of a section of the city charter granted in 1895 and not otherwise amended or repealed in any respect having present pertinence, the $700 would have become payable to the plaintiffs and collectible by them "upon the first week day after the first regular meeting of the board of finance" following the publication of the assessments, which was required to be made within one week after their entry upon the records of the board of aldermen. Kelly v.Waterbury, 83 Conn. 270, 272, 76 A. 467; 12 Special Laws, p. 454, § 76. The defendant contends that by force of this amendment the assessed sum is not yet payable, since the public work for which the land was taken has not yet been entirely completed.

If it be assumed that the language of the 1905 amendment relied upon to produce this result would, constitutional limitations aside, be so construed, it would fail as being in violation of that provision of our Constitution which forbids the taking of private property for public use without just compensation therefor. Art. 1, § 11. The $700 assessment of damages in this case, like all other similar assessments resulting from a property taking, represents the amount of damages suffered by the property owner by reason of the taking, ascertained as of the time of its occurrence. If its payment is not made by the condemnor promptly, or at least within a reasonable time, the result is a loss of the use of the money for the period of the delay. If an attempt be made to provide legislative authority for such delay by a direction that the assessment, although made and effective, should not be payable or collectible until some indefinitely postponed time, as, for example, until the completion of the work for which the property is taken, however long in the future that might be, that attempt must be abortive as one professing to authorize the forbidden act of taking private property for a public use without just compensation therefor. "`Just compensation' means a fair equivalent in money, which must be paid at least within a reasonable time after the taking, and it is not within the power of the legislature to substitute for such present payment future obligations, bonds, or other valuable security." Waterbury v. Platt Bros. Co., 76 Conn. 435, 440, 56 A. 856. It matters not whether the property thus taken be regarded as the land condemned, or the amount of assessed damages withheld for the condemnor's use, or whether the taking be a permanent one or one for a period of time only. In either aspect of the matter and in either event, the result will be the appropriation of private property without just compensation.

If, therefore, the amendment of 1905 purports on its face to authorize this forbidden thing, it is in so far unconstitutional and inoperative, with the result that the original charter provision respecting the payment of damages remains unimpaired and in force. Kelly v. Waterbury, 83 Conn. 270, 272, 76 A. 467. If it does not so purport, the same result follows. In either event, § 76 of the Act of 1895 remains effective to make the assessed amount of damages due and payable to the plaintiffs and collectible by them as of the time therein stated.

The Superior Court is advised to render judgment for the plaintiffs, and that they recover of the defendant the sum of $700 together with interest thereon from February 5th, 1917.

Costs in this court to be taxed in favor of the plaintiffs.

In this opinion the other judges concurred.