Board of Water Commissioners v. Johnson

The defendants present in their reasons of appeal, in various forms, a fundamental objection to the proceedings had before the judge to whom this application was addressed, and to the rendition of his judgment, which in substance is that the plaintiff upon the facts, either alleged or shown, is not entitled to take what it is sought to appropriate, since there has never been a judicial determination that there exists a necessity for such appropriation for the purpose to which it is proposed to devote it. In this connection they assert that to permit the plaintiff to take as attempted, in the absence of such a determination, would be to deprive them of their property without due course of law, in contravention of constitutional prohibition.

A consideration of this objection involves the double inquiry, first, whether the plaintiff in the course pursued by it, and in this application, has acted within and in conformity with, or in excess of, the rights and powers attempted to be conferred upon it by the General Assembly; and second, whether the rights and powers so attempted to be conferred are such as may be given without invading constitutional guaranties.

In 1866 the city of Norwich was by a charter amendment authorized "to take and convey from the Yantic River, or any other river, stream, pond, or lake, such supply of water as the necessities or convenience of the inhabitants may require; provided, that the water aforesaid be taken with the assent previously obtained of those who have right thereto." Authority was given to enter upon private lands to make surveys, and to agree with owners upon the compensation to be made. 6 Special Laws, p. 100. Here it will be noted that no limitation is placed upon the location of the river, stream, pond, or lake, and that the right of eminent domain is not conferred. By the provisions of a revised and amended charter passed in 1871, a board of water commissioners was charged with the duty, under the direction of the court of common council, of maintaining the city waterworks and the property held therefor, and the power of acquisition which was vested in the city by the charter provision of 1866 above recited was in unchanged language cast upon that board as an agency of the city. 7 Special Laws, p. 198. In 1893 the charter was again amended, so that the board of water commissioners was empowered to "take any land, water, water rights or other property, or any franchise which may be required for executing the powers conferred upon them by the charter of said city of Norwich, or for furnishing such supply of water as the necessities or convenience of the inhabitants of said city may require." It was further provided that the board might, subject to the approval of the court of common council, agree with the owners of property taken as to the compensation to be paid, and in case of disagreement might apply to any judge of the Superior Court to determine such compensation and direct the manner of payment, and after such determination and payment might take possession of and appropriate the property. All inconsistent Acts and parts of Acts were repealed. 11 Special Laws, p. 274.

This last legislation beyond question conferred upon the board, acting with the approval of the court of common council, the power of eminent domain, and by the force of the express as well as an implied repeal removed from its authority the limitation upon it resulting from the pre-existing provision by which its power of acquisition was restricted to that which could be obtained with the assent of the owner. Hence-forward it could take in invitum the property rights enumerated in the Act, to be utilized for the public use stated therein, provided, of course, that the conditions prescribed and involved in a rightful exercise of such power were present.

The authority thus given was, beyond question, one not confined to the territorial limits of the city of Norwich. It is impossible to read the original Act of 1866 without coming to the conviction that the city was empowered to locate its source of supply without its boundaries. The general and unrestricted language of the grant itself sufficiently indicates that, and the provision, found in another section, for the conveyance of the water into the city emphasizes it. The revision of the charter in 1871 contains the same indications and others: as where authority is given to supply water to persons residing along the line of the works outside of the city. It is apparent that it was the intent of the Act of 1893 to remove the restriction that all property must be secured by agreement with the owners, and confer the power of acquisition in invitum, and that there was no intent to restrict the plaintiff as to territory, or to change its existing rights in that regard. Had there been such intention, there would certainly have been used appropriate language, and not a substantial repetition of the former general and unrestricted language.

Among the conditions which were prerequisites to the exercise by the board of the power thus conferred upon it, was the existence of a necessity, within the meaning which the law attaches to that word when used in this connection, for the proposed taking, and a determination of its existence. This determination was, primarily at least, a matter for the legislative department of the government. Todd v. Austin, 34 Conn. 78, 88; NewYork, N. H. H.R. Co. v. Long, 69 Conn. 424, 435,37 A. 1070; Waterbury v. Platt Bros. Co., 76 Conn. 435,440, 56 A. 856; Appleton v. Newton,178 Mass. 276, 281, 59 N.E. 648. 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 for the reinforcement of the city's supply. There was thus no attempt to pass upon the question of necessity to its full extent, and as applicable to the defendants' properties. But the power to determine this all-important question is one which all authorities agree may be delegated. It may be delegated to some person, tribunal, or board, or to the party to whom the authority to condemn is given. New York, N. H. H.R. Co. v. Long, 69 Conn. 424, 435, 37 A. 1070;People ex rel. Herrick v. Smith, 21 N.Y. 595, 598; EasternR. Co. v. Boston M. R. Co., 111 Mass. 125, 131;Central R. Co. v. Pennsylvania R. Co., 31 N.J. Eq. 475,489.

Where, as here, the legislature itself has not determined the question of necessity, but has authorized some public or private corporation, or individuals, to condemn such property as may be necessary for a defined public purpose, without designating who shall decide what particular property may be so necessary, the right of decision is vested, primarily at least, in the party to whom is given the power to condemn. Upon this proposition the courts are in general agreement.Mississippi R. R. Boom Co. v. Patterson, 98 U.S. 403,404; Lynch v. Forbes, 161 Mass. 302, 304,37 N.E. 437; Moseley v. York Shore Water Co., 94 Me. 83, 89,46 A. 809; Cotton v. Mississippi R. R. Boom Co.,22 Minn. 372, 374; Biddle v. Wayne Water Works Co.,190 Pa. 94, 96, 98, 42 A. 380.

There is by no means the same agreement as to the effect which will be given to a decision so made. In some jurisdictions it appears to be broadly held that as the question involved is a purely political one, it may not become a matter of judicial cognizance, even by way of review, if the conditions attached to the delegation have been complied with. Mississippi R. R. Boom Co. v. Patterson, 98 U.S. 403, 406; Shoemaker v. United States, 147 U.S. 282, 298, 13 Sup. Ct. Rep. 361; Lynch v. Forbes, 161 Mass. 302, 308,37 N.E. 437; Hayford v. Bangor, 102 Me. 340, 344, 66 A. 731. This court has held that ordinarily the courts may not interfere; New York, N. H. H.R. Co. v. Long,69 Conn. 424, 436, 37 A. 1070; Waterbury v. Platt Bros. Co., 76 Conn. 435, 440, 56 A. 856; but in Todd v.Austin, 34 Conn. 78, 88, we recognized that situations where there was bad faith or unreasonable conduct in the exercise of the political function furnished a justification for judicial interference. Many cases in other States have expressed this latter view, and held what we regard the better law, that the decision of the condemner that a necessity exists for the taking of particular property is one open to judicial review to discover if it was unreasonable, or in bad faith, or an abuse of the power conferred, and that the appropriation of the property will be restrained if it be found that such was the character of the decision. In re St. Paul N. P. Ry.Co., 34 Minn. 227, 230, 25 N.W. 345; Bennett v. Marion,106 Iowa 628, 632, 76 N.W. 844; Olmsted v. Morris Aqueduct,46 N.J.L. 495, 500; Smith v. Chicago W. I. R.Co., 105 Ill. 511, 519; Savannah Ry. Co. v. Postal Tel.Co., 115 Ga. 554, 560, 42 S.E. 1.

This difference of view, however, whether or not it is as real as it is apparent, is not important as related to our present inquiry, since there is substantial accord between the cases of the different classes to the extent at least of holding that the question of necessity is one which under the conditions named is to be determined primarily by the party empowered to condemn, and that the determination made by it will be conclusive unless and until it is successfully attacked for unreasonableness, bad faith, or abuse of power. The following cases, all of which recognize the right of judicial review, sufficiently illustrate the correctness of this proposition. Pennsylvania R. Co.'s Appeal, 128 Pa. 509,521, 18 A. 522; Giesy v. Cincinnati, W. Z. R.Co., 4 Ohio St. 308, 326; Riley v. Charleston Union StationCo., 71 S.C. 457, 469, 51 S.E. 485; In re Minneapolis Ry. Terminal Co., 38 Minn. 157, 161,36 N.W. 105.

It follows, of course, from the prima facie conclusiveness at least of the decision made pursuant to the delegation of authority, that the condemnor in such case may rest upon it until the attack upon it is made; that he is under no duty to have judicially established, or to allege in his application for assessment of the amount of compensation, and prove, the existence in fact of the necessity; and that the burden of any attack upon it rests upon the attacking party. Otherwise we should have the strange result that a condemnor, who, in the exercise of authority rightfully delegated to him, had determined that the necessity existed, would be required to ignore the validity of his own action thus taken, and present to a court, by allegation and proof, for its decision, the very question he had already passed upon. Thus would he convert himself into a mere initiator of judicial proceedings, and transfer to the courts the decision of the political question whose determination the legislature, acting within its proper sphere, had adequately and lawfully provided for otherwise.

The cases which have arrived at this anomalous result are few indeed. Stearns v. Barre, 73 Vt. 281,50 A. 1086, is one of them, and the principal one. Tracy v. Elizabethtown, L. B. S. R. Co., 80 Ky. 259, although less pronounced in its views, appears to be another. We have no occasion to notice the reasoning or conclusion of these cases further than to observe that they are directly opposed to a long line of cases to the contrary, and that they are not, in our opinion, founded in sound reason. The fundamental difficulty with them is that they overlook the facts, or the real significance of them, that the question of necessity is a political and not a judicial one, that its determination as a political question properly belongs to the legislative department of the government, and that its determination under a delegation of authority is the determination of the legislative department. It is one thing to say that the courts may review the action of the delegated body to secure the preservation of constitutional or legal rights, when the legality or regularity of that action is challenged for sufficient cause, and quite another for the courts to assume to themselves original authority to act in the premises, as is in effect done when the condemnor is required to establish judicially the very thing which it was empowered to determine. The courts may not by indirection, through the operation of such simple processes, usurp administrative jurisdiction.

It thus appears that we have before us a situation in which the plaintiff shows adequate authority from the General Assembly to exercise the power of eminent domain in taking, for a confessedly public use, property and property rights determined by it to be necessary for that use; in which the plaintiff, with the required consent of the court of common council, had determined that the appropriation of the defendants' several properties and property rights described in the application was necessary for such use, and had voted to appropriate them therefor; in which the plaintiff, failing to agree with the owners as to the amount of compensation to be paid, had, by the presentation of its application, taken the steps prescribed in the enabling Act to have the amount of such compensation judicially fixed; in which the proceedings upon that application, including full notice to the defendant owners, were had in due and regular order; and in which a judicial judgment fixing the amount of such compensation was had upon such proceedings. Such being the case, the defendants cannot complain that their property is about to be taken without due course or process of law.

"Due process of law" is but another name for "law of the land." Dartmouth College v. Woodward, 4 Wheat. (17 U.S.) 518. It does not necessarily imply a judicial process, or proceedings after the established method of courts. On the contrary, legislative action within the limits of legislative authority and conformably to constitutional safeguards and established principles is the law of the land. Davidson v. New Orleans,96 U.S. 97, 104; McMillen v. Anderson, 95 U.S. 37, 41;Pittsburgh, C., C. St. L. Ry. Co. v. Backus,133 Ind. 625, 642, 33 N.E. 421. The law of the land in judicial proceedings is one thing: as regulating legislative proceedings it is quite another. "Due process of law in each particular case means such an exertion of the powers of government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs." Cooley on Constitutional Limitations (4th Ed.) s. p. 356; People ex rel. Herrick v. Smith,21 N.Y. 595, 598; People v. Adirondack Ry. Co., 160 N.Y. 225,238, 54 N.E. 689.

The steps taken in the matter, in so far as they related to political questions and concerns, having been in strict accord with accepted maxims and principles governing such action, and, in so far as they related to matters of judicial cognizance, in conformity with established judicial methods and requirements, there has been due process of law.

But the defendants urge that they have never had the opportunity to be heard upon the question of necessity, and that for that reason there has not been due process of law. They were not entitled to such opportunity. It is well settled that, as related to the exercise of the power of eminent domain, all questions which are political in their nature and lie within the legislative province may be determined without notice to the owner of the property affected; and the question of whether a particular work or improvement shall be made, or particular property taken, being one of that character, the owner is not entitled to a hearing upon it as a matter of right. 2 Lewis on Eminent Domain (3d Ed.) § 567; Cooley on Constitutional Limitations (4th Ed.) s. p. 538; Zimmerman v. Canfield, 42 Ohio St. 463,471; Appleton v. Newton, 178 Mass. 276, 281,59 N.E. 648; People v. Adirondack Ry. Co., 160 N.Y. 225,236, 54 N.E. 689; State Water Supply Com. v. Curtis,192 N.Y. 319, 330, 85 N.E. 148.

The brief of defendants' counsel calls attention to two features of the charter provision, with the evident purpose of suggesting that they render it inoperative, if it is to be construed as we are compelled, by force of its general and unrestrained language, to construe it. The one is that there is no restriction as to the territory within which the power of appropriation may be exercised, and the other that the language is broad enough to embrace property which has already been taken for a public use. These suggestions are not pursued at length, and we are not told why, for these reasons, the legislative enactment must be held a nullity in its entirety, or at least as to territory lying outside of the city of Norwich, except for the proposition, with citation of authority, that property once taken cannot be taken again to be used for the same purpose and in the same manner.

A sufficient answer to the second of the suggestions, and, incidentally, to the proposition last referred to, is found in the fact that the assumption upon which it is based is not well made. In Evergreen Cemetery Asso. v.New Haven, 43 Conn. 234, 242, we held that although the language conferring the right of condemnation was general and unrestricted as defining the property which might be taken, it would be presumed, in the absence of express words or some necessary implication to the contrary, that it was not intended that land already appropriated to one public use should be taken for the new use. In this connection it will be further noted that this objection might be made as effectively to the Act were the power therein conferred expressly limited in its operation to Norwich, and that if it furnished ground for a declaration of invalidity of this Act much, if not most, of our legislation empowering municipalities to provide water-supplies would fail.

The first of the suggestions is without valid foundation by reason of either constitutional provision or legal principle. The right to take private property for public use is one which is inherent in the State as an independent sovereign. It attaches to every man's land, and is paramount to his right of ownership. All titles are held subject to it. The Constitution is not its source, but the source of its limitations. Todd v.Austin, 34 Conn. 78, 88; Clark v. Saybrook, 21 Conn. 313,324. It knows no territorial divisions, and is fettered by no limitations of distance. Whenever the public need calls for the public appropriation of any property subject to the jurisdiction of the sovereignty, it may be taken to supply that need, wherever it may be located. There is no constitutional or other legal restraint upon this sovereign right to reach out to take what the public need demands, however far the need requires that reach to extend.

Under our form of government the sovereign people act, in determining the existence and extent of the public need, through the legislative department, which, as we have seen, may act directly or through the medium of delegated power. Whether or not there shall be such delegation, and the scope of it, is a matter for legislative decision. When a delegation is made it becomes a part of the machinery adopted to arrive at the political result. The feature of the delegation in the present case with which we are dealing is that which left the determination of the necessity unhampered by territorial limitations. We are bound to presume that the legislature had what it conceived to be sufficient reasons for the course pursued. What authority exists for our review of this administrative decision we fail to discover, as we also do as to what constitutional or other legal objection there is why the legislature might not, if it saw cause, leave the agent as free in the matter of territory as it would have been itself, had it chosen to act. What, after all, concerns the courts, is not the method pursued or machinery employed by the legislature within its sphere of action — assuming, of course, that it is regular and not violative of constitutional provisions — but the resultant determination of the political question before it. When that determination is made, then the opportunity has arrived when the rights of property may be judicially protected from unlawful invasion.

The motions to dismiss and demurrers presented the claim that the charter provision of 1893 was impliedly repealed by § 2600 of the General Statutes as amended by § 2 of chapter 192 of the Public Acts of 1903.^* Reference is made to this subject in the brief of defendants' counsel, but we do not understand them to urge that proposition before us. It is untenable by reason of § 4931^** of the General Statutes, and the further fact that the two provisions are in no way inconsistent with each other and may well stand together. The general statute is an enabling Act containing a general grant of power, and its provisions are neither mandatory nor exclusive. Fair Haven W. R. Co. v. New Haven,75 Conn. 442, 447, 53 A. 960.

The motions and demurrers also contended that the proceedings must fail for the reason that the description of the property and rights taken was insufficient. This claim is not pursued in the briefs.

The foregoing opinion considers and determines all the questions which are raised in the companion case of the Board of Water Commissioners of the City of Norwich vs. J. Raymond Palmer et als., which was argued with this cause.

There is no error in either case.

In this opinion THAYER and RORABACK, Js., concurred.