New Britain herald., 1929-07-26

ed he was willing to execute for the benefit of the State, upon authoriza- tion by the General Assembl The deed grants a tract 50 feet in width instead of 50 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 pur- posc-to defend ourselves from az gression Finally, since it is net question of dollars and cents with us, let me point out that the only consideration for the decd is that embodied in the commission $ proposal, namely freedom in future from molestation. The above reply was transmitted to the commission whose chairman and members were then and now arc the same. The agreement was consummated before the bill of June ?, 1923, was passed and approved.
 In the latter part of 1924 the At torney- General instituted in the name of the members of the con- mission and the comptroller of the State and at their direction, an ac- tion against one of the defendants as eXecutor of the will of Eliza A. McCook to condemn a portion of de- fendants' land having a frontage on the beach of about 200 feet. This ac- tion was withdrawn by the Attor- ney-General by direction of the com mission on Soptember 17th. 1925, the day before the nresent action was berun. Prior to the action begun n 1924 the commission voted in order to carry out the purposes of the Act of 1922. that the commission re- ouired the land proposed to he con- demred in the action of 1921. This vote is till in effect.
 Another Bill Rejected
 At the snseion of the Gcn,ral As sombly of 1925. after tho expiration of the time limited for the preeenta- tion in the House nnd Senate of bills md resolutions. tn Committee on Hu~lane Institutions, without notice or hearing, oririr nted and reported n tho Ho""o of Ponrcsontativcs on May 14, 1925, bill authorizing the commission to employ an attorney under the Act of 1923. to acquire land for the Tuberculosis Sanatori- nm "nd making an @ppropri"tion ot S3,000 to carry ont the act. The bill was on June ?, 1895, rejected.
 On May '. 1925, t'on Committee C. Appropriations without notice citation or hearing reported the hill which is the act upon which the present action is based. The bill was prepared outside of the committed and was not introduced and referred in the usual way. IL passed both house. on June 1. 1925. but was rot sigred by the governor before tho final adiournment of the Genera Assembly on Wednesday, June 3 1925, nor within three days, Sunday executed. after the final adjourn ment thereof and rot until nineteen days thereafter. No attempt was made by the attorney appointed un. der this Act to agree with the de fendant owners as to any terms o1 conveyance or compensation. no' haG the commission communicated with defendants except through th' medium of compensation proceed ings since the making of the above agreement.
 The defendants at all times hav' been and now are willing, have of fered and now offer, to convey to the State in accordance with the term: of the agreement the sixty feet 0. land referred to in the agreement.
 The court sustained the demurrer holding that the sole question at is sue was the determination of the compensation to be paid and that the new matters alleged in these paragraphs have no bearing upor the determination of that.
 The defendants renewed in theil answer a ground of their demurrer to the complaint that the Act wa nto signed by the Governor unti nineteen days after the final ad journmcnt of the General Assembl, on June 3. 1925. The cour1 was jus tifed in ignoring defense whicl had already been adjudicated on de murrer.
 Defendants Privileges
 The defendants also claim tha these allegations of the answer shoy that the taking is not in good faitl and is an abuse of power and un reasonable. They claim further il defense that the history of this mat ter discloses a line of pursuit whicl is nothing less than vexatious These claims are based upon a prin ciple of law which this court full recognizes. We express in Wate ) Commissioners V. Johnson, SC Conr 151, 159, the principle in thes terms: "Many cases in other state l have expressed this latter view, an held what we regard the better law that the decision of the condemno : that necessity exists for the takin l of particular property is one ope to judicial review to discover if was unreasonable, or in bad faith o 2n abuse of the power conferred an
 that the appropriation of the pror l erty will be restrained if it be foun : that such was the character of tn : decision"
 Id. Water Commissioners V. Mar chester, go Conn. 671, G79. "We fin no occasion to determine whethe these dafcnscs could withstand proper demurrer to them. They hay never had their day in court" Tn
 demurrer flied by the plaintiff t the answer did not attack these dc lenses. The trial judge in sustain ing the demurrer confined his alter tion to the ground of the demulre which had no relation to the dt lenses the defendants attempted plead. Judgment could not hay /; been legally rendered until these dt l lenses were legally disposed of. There was, too, upon the allegs y tions of the answer an opportunit
 to claim bad faith in these proceed f ings because of the breach of