Waterbury evening Democrat., 1907-12-31
JAMES ST. WIDENING
Properly Owners Heard Before
 Judge Cowell Today.

The motion to dissolve or modify the injunction which was served upon the city last summer prevent ing it from widening James street by looping off parts of buildings and acquiring property, was heard be- fore Judge Cowell in the district court to-day. The motion was the city's, as it is desirous of having the matter cleared up before summer in order to get ahead with the work or have the proposition set aside by the court.
 The injunction was brought in the name of z nomas Kelly and his neighbors who own property on James street. They claim they were not notified to appear before the board of assessment in regard to the matter and that anyway there had been no appropriation made for this particular piece of work.
 The lawyers, Kellogg for the city and Carmody and Reilly for the pe titioners, had no sooner got to work this morning than it transpired that the whole court proceedings were out of gear, but after considerable dis cussion it was agreed that whatever order Judge Cowell might issue should be taken to the superior court for endorsement. Then the | hearing began.
 The first witness was Assistant City Clerk James R. Lawlor, who testified to the action of the munich | pal board, such as issuing the notices I to the property, owners concerned. | Then followed City Sheriff Matthew J. Smith, whose duty it is to serve or mail the notices. MT Smith testi- l fled that all of the property owners were properly notified He said, however, that MT Kelly's notice was addressed to 414 West Main, his city residence, while in fact at that time he was living in Middlebury, but the sheriff said all of MT Kelly's mail was left at his West Main street house.
 Regarding the appropriation, As slstant Comptroller William J. Shan nahan testified that on September 5, 'O6, special appropriation of $25,- OO0 was made for street work. In that month there was spent out of that appropriation $9,SO3. On De- cember 1 there was still unexpended of that $25,000, $13.313.16.
 And so the evidence went along. 1 The arguments were certainly startling. It seems that the legisla- ture of 1905 passed special act amending the city charter, to the eff, feet that where the city secures prop erty as in this case it need not be paid for until the work for which il was required is done. Counsel fol MT Kelly and the others contended that this act was openly and decided, ly unconstitutional and in opposi, tion to the constitution of the United States, inasmuch as the latter re. quired that property that is acquired for public purposes must be paid fol when 1t has been secured. Thus according to the special act of the Legislature of 1905 it may be fifty years or five years before the work in question is begun, and as many more years before it would be completed and mean while the unfortunate lit tie property owner must wait for his few dollars which the city decided tC pay him.
 Still. City Attorney Kellogg main tained that if the court found this act, or clause, in the charter to be unconstitutional he would ask a modification of the injunction to the extent that the proposed work be de. layed until such time as payment oi the benefits and damages would be | rendered.
 Attorney Carmody in reply asked if MT Kellogg proposed to burst the city charter to pieces in order that this proposed extension of Jame. street be carried out. The average citizen is prosecuted when he violate. the charter what then should hap pen in this case when it would bt torn asunder if City Attorney Kel logg carried out what he seemed the court should order? Was tn, court to decide the charter of tho city of Waterbury was unconstitu tional?
 MT Kellogg answered that so fai the city authorities have acted ur der the charter and it was for tn, court to see If the notices to attend the meeting of the bureau of assess ment were served upon the plaintiffs It was the courts duty substantial! to decide if the special act of tn, legislature of 1905 was part of tn, city charter. This ended the argu ments.
 This is the first time the city char ter has been attacked as vigorousl! as this. It has been poked at Oc casionally, but never before has i been declared in opposition to tn, federal constitution.
 Judge Cowell reserved decision.