Connecticut Light & Power Co. v. Town of Southbury , 95 Conn. 242 ( 1920 )

We think the judgment is not erroneous in form. The petition follows the statute in asking for a finding of the value of the land occupied by the River Road within the described limits, and the amount of a bond which should be sufficient to indemnify the State and the respondent towns. Having once preferred these requests in the body of the petition, there was no necessity for repeating them in a formal prayer for relief. The statute directs that the trial judge "shall in writing direct said company to pay to the treasurer of the State" the ascertained value of the land, and "shall also direct said company to file with the secretary of the State a bond," etc. There is no express direction for the entry of a judgment to that effect, but these provisions of the statute are satisfied when the written direction, which is in effect the decision or sentence of the tribunal, is put into the form of a judgment; and having regard to the necessity for a final and conclusive and enforcible record of the findings of the judge, we do not see in what more appropriate form they could have been embodied. "When judicial authority is vested by statute in a judge of the Superior Court, its exercise at chambers is an exercise of the judicial authority of that court." Cogswell v. Second National Bank,76 Conn. 252, 257, 56 A. 574; New Milford Water Co. v. Watson, 75 Conn. 237, 241, 52 A. 947, 53 id. 57.

The constitutionality of the Act is challenged on the ground that it attempts to confer extra judicial powers on a judge of the Superior Court, and on the ground that it attempts to take private property for a public use without just compensation. In another proceeding between the same parties, ante, p. 88, we have just considered these objections as applied to Chapter 205 of the Public Acts of 1919, which relates to the same subject of flooding highways by dams, and we will not repeat what was there said. It is enough to say that the powers conferred on the judges of the Superior Court by Chapter 217 are much narrower than those which we have held were constitutionally conferred upon them by Chapter 205. Under the Act now in question the General Assembly itself has discontinued the River Road within the described limits, and has itself prescribed the terms and conditions of such discontinuance, leaving to the judges only the ascertainment of the value of the land occupied by the highway, the sufficiency in amount of a bond of indemnity, whose every other term is prescribed by the Act, and the issuance of mandates requiring the petitioner to comply with the provisions of the statute when thus made certain and specific by the findings of the judge. It cannot successfully be contended that these are extra judicial powers or functions, and the only debateable [debatable] issue as to the constitutionality of the Act arises under the other claim, that the statute attempts to take private property for a public use without making any provision for just compensation before taking it.

The final clause of § 1 of the Act prescribes that upon the payment of the ascertained value of the land occupied by the highway "to the treasurer, and the filing of said bond in the manner hereinbefore prescribed, such portion of said River road shall be for all purposes discontinued, and said company may thereupon flood the same or any portion thereof." When these prerequisite conditions have been performed, this language on its face appears to authorize the immediate flooding of the highway, whether or not the abutting owners have been compensated or provision made for compensating them.

It might be said that the respondent town is in no position to complain, for the law is well settled that only members of the class whose constitutional rights are endangered by a statute may ask to have it declared unconstitutional; and the town has no rights of property, private or otherwise, in the highway. Its powers and duties as custodian of highways are conferred upon it by the State whose agent it is, and when the State discontinues the River Road as a highway, the subject-matter of that special agency has disappeared and the dependent rights and obligations of the town are gone. Regarding the town in its capacity as a municipal corporation, it does not represent the property rights of its inhabitants, and has no authority to assert them or put them in jeopardy in this action.

This statute does, however, affect a limited class of property owners whose constitutional rights are indisputable. The petitioner does not dispute them. It agrees that it is bound by its charter to pay all damages to private property caused by the flooding of the highway, and as we have no doubt that such is the law, there seems to be no reason why we should not put the question at rest.

It is our duty to construe the Act so as to reconcile it with the Constitution, if that can reasonably be done, for it must be presumed that the General Assembly intended it to so operate. This result is accomplished if we read the Act in connection with the charter of the company for whose benefit it was passed. The General Assembly had a right to discontinue the highway on such terms as it might impose. It had already by special charter authorized the petitioner to take private property upon the only constitutionally possible terms of paying just compensation therefor. And there is no just reason for supposing that by the last clause of § 1 it intended to exceed its powers and to attempt to authorize the corporation to take private property without compensation. The fact that only the State highway commissioner and the respondent towns were to be notified of the time and place of hearing, indicates that no confiscation of private rights was intended; and when it further appears that all rights of private ownership were already safeguarded by the petitioner's charter, this inference becomes irresistible.

There is no error.

In this opinion the other judges concurred.