New Britain herald., 1929-07-26

Supreme Court op!nlon Tn the case of the State of Connecticut against John B. McCook ct als, executors: sState of Connecticut vs. John B. MCook ct als, Executors.
 First Judicial District (tran5fer- ed from Second District.)
 z Hartford, May Term, 1929.
 sWheeler, C. J. Maltic, Haincs, Hin 1Sn and Banks, Js.
 Petition praying that the amount @ be paid the owners of land taken ov the State pursuant to the Act approved June P, 1925, be deter mined, brought to the Superior Court in New London County where de- nlurrer to and so-called motion to quash the petition was overruled, Avery, Jr., thereafter a motion to strike out the answer was denied, Jennings, J.; the defendants refus- ing to plead over, judgment was rendered appointing committee to ascertain the value of the land pro posed to be taken and assess just compensation therefor to the owners and make report thereof to the ,ourt, and appeal by the defendants. Error and judgment directed.
 ~Charles W. Gross and Hugh NJ, 4icon, for the appellants (defen- ISnts).
 Arthur M, Brown, for the appel 60 (plaintiff),
 States special Act
 Wheeler, C. J. The applicable part 1f the Act upon which the petition ia this action is based we quote in a foot note. It IS designated by the State as a special act and is printed among the Special Acts. If the pur- pose of the Act is to provide for the aecuiring of land for the tubercu- l1sis sanatorium at East Lyme it is, Ss we would take judicial notice, public act since the Sanatorium is en institution of the state for the care and alleviation of all persons Within the state afflicted with tuber- culosis, without discrimination.
 .eNeither in form or substance docs this Act resemble the ordinary grant of the exercise of the power of cmi- nsnt domain. The petition pre- samably assumes the legislative de termination as to the taking of the land described in the Act and the necessity therefor. It does not pray fer the appointment of a committee to determine the just compensation to be paid for the land taken but prays that the amount to be paid to the owners of the land be deter mined. The judgment recites that the action came to the court for the ap- pointment of committee to deter mine the amount to be paid the own CTS of the land and the appointment of the committee, together with a specification of their duties.
 FAN ACT PROVIDING FOR THE ACQUIRING OF LAND ~FOR THE TUBERCULOSIS
 sSANATORIUM AT EAST LYME
 Be it enacted by the Senate ~and House of Representatives -in General Assembly convened: < Section 1. The sum of thirty five thousand dollars, or so .much thereof as may be neces- = -sary, is appropriated for the ~purpose of acquiring, by con- < demnation proceedings or other awise, for the site of the tuber- @@culosis sanatorium at East -Lyme, land located at East ~Lyme, bounded and described as ~follows -.
 . (Here follows a detailed dcs- ~ ~cription of the land). Section 2. The governor is authorized to appoint an attor- .ney at law for the purpose of carrying into effect the provi- ~sions of this act.
 Approved, June P, 1925.
 Claim Not Eminent Domain
 ,s The petition merely recites the possession and occupation of certain land and buildings as the site of a Tuberculosis sanatorium, an institu- ton used and operated by the State for the benefit of the public of the State; the terms of the Act, the loca- ton of the land described in the Act as adjoining the land of the State and that it is necessary for the use of the sanatorium; the appointment by the Governor under the Act of an attorney for the purpose of carrying into effect the provisions of the Act and that the attorney cannot agree With the owners upon the amount to be paid them. The demurrer to the petition raises most of the questions which are contained in the reasons of appeal. The defendants-appellants place the greatest emphasis upon their claim that his Act is not an exercise of the power of eminent do main but IS solely an appropriation act coupled with the appointment of an attorney to carry out the provi, sions of the Act. In form the Act Purports to be an appropriation Act It does not contain an express pro, vision for the taking, as is usual, no1 an express declaration of the ncces- slty for the taking, nor one that il Is to serve public use. It does not provide 9 method of procedure fol ascertaining, either by the terms o1 the Act or by reference to the pro. cedure designated in another act, the lust compensation to be paid for the land. It appropriate8 thirty-fvc thousand dollars, or so much d. may be necessary, for the acquiring by condemnation or otherwise ot about five acres, which it specifically describes, thus limiting the maxi mum of the award in the condcmna ton proceedings to the amour famed. While it authorizes the aD pointment of an attorney for tn, purpose of carrying out the purpose of the Act it does not provide fo Rim a procedure of action, nor au horize him to secure the appoint ment of committee by q prope cnurt to determine the just compon Sation to be paid for the land taken ~ l f