The General Assembly, in the amendment to the charter of Norwich, empowered the board of water commissioners, with the approval of the common council, "to take any land, water, water rights or other property, or any franchise which may be required . . . for furnishing such supply of water as the necessities or convenience of the inhabitants of said city may require." *Page 167
The question at issue is whether under this grant the board, without notice to the owners, may by its mere vote to condemn land and water rights in an adjoining town, determine the taking and the necessity for the taking for such use, so that it need not allege it in its application to condemn, nor offer proof of it on the hearing.
If the legislature can delegate the power of determining the necessity for the taking under such general grant to a municipal corporation, it can make a similar delegation to a private corporation. For example, it could delegate to a railroad power to take any lands or franchises required for its purposes, and that too, without a designation of the route, or the location, general or special, of the property to be taken. By vote of its directors the railroad could decide, under its general grant, to take any man's property without notice to him or an opportunity to be heard as to the necessity for and reasonableness of the taking, and upon its application to the court might condemn without allegation or proof that the property taken was necessary to its use. The argument and conclusions of the majority opinion lead to this, and we think there must be something fundamentally wrong with such a doctrine. KeyportSteamboat Co. v. Farmers Trans. Co., 18 N.J. Eq. 13,20.
By its grant of power to condemn, the legislature ordinarily declares the taking for the purposes of the grant a public use, and declares the existence of a public necessity for the condemnation of the property covered by the grant to that use. New York, N. H. H.R. Co. v. Long, 69 Conn. 424, 435, 37 A. 1070. This declaration follows a grant which specifies the source, location, property or rights to be taken. It does not follow a general grant which fails to make such specification. The power of the legislature to condemn may *Page 168 ordinarily be delegated. In the case before us the grant is general in terms, and neither the property to be taken nor the necessity for the taking has been determined by the legislature. It has conferred on the authorities of Norwich power to take anywhere in the State, and restricted the taking to such property "as the necessities or convenience of the inhabitants of said city may require."
The ownership of all property is held subject to its appropriation by legislative grant to the public use. Such exercise of power is political in character, and with no limitation upon the legislative authority to take, and the extent, necessity and propriety of its taking other than that: 1. The use must be a public one. 2. The taking must be in good faith and not in an abuse of power. 3. The taking must not be unreasonable.Waterbury v. Platt Bros. Co., 76 Conn. 435, 440,56 A. 856. Ordinarily the legislative determination to take is final. Courts will not interfere with its exercise of discretion except in clearest case of violation of some of the foregoing principles. When the property to be taken, or its location or source, is designated within reasonable bounds, the legislative designation is final. When the authorities say that the legislative designation is final, they speak with reference to designations of this description, and not to those unlimited by description or location of any character.
In a valid grant limiting source, location, or property to be taken, the law presumes notice, and under our law and legislative practice the fact accords with the presumption. In a general grant to take anywhere in the State there is no such presumption. For it cannot be said, in reason, that all the property and franchises in the State will serve the public use of supplying Norwich with water, since not all is required for that purpose. A general grant of this character which attempts *Page 169 to confer the power to take, in invitum, any and all property in the State for a public purpose, without notice to the owners and a determination of the reasonableness of the taking by some one other than the parties in interest, cannot be supported. The reasonableness of the taking and the necessity are governed by the same principles and their discussion need not be divided. Eminent domain rests on the necessity of devoting the property condemned to the proposed public use; the taking must therefore be limited to the necessities of the case. Cooley on Constitutional Limitations (7th Ed.) p. 779; Kohl v. United States, 91 U.S. 367,372; note to Henderson v. Lexington (Ky.), 22 L.R.A. (N.S.) 20, 55. When the legislature delegates this power to a public or private corporation, there is implied in the grant that it shall be exercised when, and to the extent, found to be necessary. Webster v. Susquehanna PoleLine Co., 112 Md. 416, 76 A. 254; Stearns v. Barre,73 Vt. 281. In the case before us, the delegation is not dependent upon the necessity implied in the grant; the express terms of the grant limit its exercise to such property only "as the necessities or convenience of the inhabitants may require." The legislature neither decides the necessity nor expressly delegates to any one the power to decide. That decision must involve the decision to take the property of the respondents and a determination that such taking is necessary; and this is a judicial question. Lewis on Eminent Domain (Vol. 2, 3d Ed.) § 599, says: "In all such cases the necessity or public utility of the proposed work or improvement is a judicial question. . . . In all such cases, where the authority is to take property necessary for the purpose, the necessity of taking particular property for a particular purpose is a judicial one, upon which the owner is entitled to be heard." Id. § 602; Sutherland on Statutory Construction (Ed. 1891) § 387; Randolph *Page 170 on Eminent Domain, § 53; Riley v. CharlestonUnion Station Co., 71 S.C. 457, 489, 51 S.E. 485; Inre St. Paul N. P. Ry. Co., 34 Minn. 227, 230,25 N.W. 345; Olmsted v. Morris Aqueduct, 46 N.J.L. 495, 500;Tracy v. Elizabethtown, L. B. S. R. Co., 80 Ky. 259;Henderson v. Lexington, 132 Ky. 390, 403,111 S.W. 318.
There are two classes of authorities upon this subject; one holds that the question is a judicial one; the other, headed by Lynch v. Forbes, 161 Mass. 302,37 N.E. 437, holds that the decision of the question of necessity is for the legislature or its delegated agent. And these authorities hold that in the absence of bad faith or abuse of power the declaration of the legislature or of its delegated agent is conclusive. Boston v.Talbot, 206 Mass. 82, 90, 91 N.E. 1014.
The opinion of our brethren asserts that "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"; and cites in support, Lynch v. Forbes, 161 Mass. 302,37 N.E. 437. That case does not, and the cases which follow its lead do not, hold that the decision of the question of necessity is primarily for the legislature, but do hold that it is absolutely for the legislature or its delegated agent. Judge Freeman, in a much quoted note in 42 Amer. St. Rep. 408, says of this case and its doctrine: "It is affirmed by an almost overwhelming preponderance of the authorities that the rule apparently asserted in the principal case [Lynch v. Forbes] cannot be sustained, and that, when the legislature has only authorized the taking of such property as is necessary, the question of the necessity for taking is a judicial one which must be determined either by a court, jury, or some quasi-judicial tribunal designated in the statute." Judge Freeman is, we think, right in his analysis of the *Page 171 authorities. The taking of private property for any use which is not required by the necessities or convenience of the inhabitants of Norwich, is an unreasonable exercise of the right of eminent domain, and beyond the power of the legislature to delegate. Bennett v. Marion,106 Iowa 628, 633, 76 N.W. 844; In re St. Paul N.P. Ry. Co., 34 Minn. 227, 230, 25 N.W. 345; Tracy v.Elizabethtown, L. B. S. R. Co., 80 Ky. 259; Wilson v.Pittsburg L. E. R. Co., 222 Pa. 541, 545,72 A. 235; Biddle v. Wayne Water Works Co., 190 Pa. 94,42 A. 380; Greasy Creek Mineral Co. v. Ely JellicoCoal Co., 132 Ky. 690, 697, 116 S.W. 1189; Smith v.Chicago W. I. R. Co., 105 Ill. 511; note to Chicago N.W. Ry. Co. v. Morehouse, 88 Amer. St. Rep. 918, 933, 945; Olmsted v. Morris Aqueduct, 46 N.J.L. 495, 500. If the agent is granted power to condemn property necessary to a public use, it seems illogical to hold, as our brethren do, that the agent may act in an illegal way and its action be good until attacked. It seems illogical to hold that it need not allege, in its application to condemn, the fact of necessity, upon which fact the validity of the condemnation admittedly rests, and to accord the condemnor the right to do that which is beyond the legislative grant.
A legislative determination of necessity presupposes notice to adverse parties; the petitioner in this case exercises its delegated power without notice and without an opportunity to be heard upon the necessity of the condemnation. The judgment is rendered without having had the necessity adjudicated, although the grant is predicated upon its finding. Had the General Assembly committed to the Superior Court the determination of the necessity, notice to the parties in interest would have been a prerequisite to any legal action. "It is a principle of natural justice of universal obligation, that before the right of an individual can *Page 172 be bound by judicial sentence, he shall have notice, either actual or constructive, of the proceedings against him." Dorrance v. Raynsford, 67 Conn. 1, 8, 34 A. 706.
Granted the majority opinion be sound, this conclusion follows: if the delegation be to a court, it must, on notice given, duly hear and decide the question of necessity, but if the same delegation be to a public or private corporation, no notice need be given nor hearing had, and no adjudication of the necessity made, save by the condemnor. Under General Statutes, § 7, every petition to the General Assembly of an adversary nature must be accompanied by a citation to the adverse party, otherwise it will not be heard. If, occasionally, petitions have been heard without such notice, it has been, we believe, in cases of actual notice, or these have been so infrequent as to prove the rule.
The policy of our law, as disclosed by our statutes, has been to require notice in a proceeding of an adversary nature, whether before a court or an administrative board. Adherence to this established policy seems doubly required in an adversary action to condemn private property for a public use without having the necessity of the use determined other than by the interested party. Under the rule invoked in the opinion of the court, the judgment of officials of the interested taker decides the question of necessity, without notice to the owners of the property condemned, without a hearing upon, or proof of, the reasonableness of the taking. To confer on either a public or private corporation power to take private property at its will would invite consequences dangerous to all private ownership. "If land taken professedly for a public purpose is vested absolutely in a private agent, what is not needed for the purpose becomes his; to authorize him to take whatever he may say the purpose needs, is to subject the right of property to his good pleasure, *Page 173 and finally to rest the eminent domain upon private interest instead of public good." South Carolina R.Co. v. Blake, 9 Rich. Law (S. Car.) 228, 238. "If the courts could not limit the legislature to such land as is reasonably necessary or subservient to the public use, a public use of the most insignificant proportions would support an appropriation of land practically unlimited in extent. It is obvious that to the extent that eminent domain is employed over and above that reasonably necessary for the public use, it is employed for a purpose not public but private." Note to Chicago N.W.Ry. Co. v. Morehouse, 88 Amer. St. Rep. 918, 933, 942.
The Massachusetts doctrine, that the question of necessity is political and at the will of the legislature or its agent, is at least consistent. It fails to note that the use cannot go beyond the reasonable limits of the necessity.
The majority opinion holds that the question is political, and hence to be determined, in the first instance, by the legislature or its delegated agent, but that if the necessity be unreasonably exercised, the property-owner may so plead and must assume the burden of proving it. This position at the same time accepts and rejects the theory that the question is political and the legislative determination final. This position leads to this: taking more than is reasonably necessary is without the grant and illegal, but unless the property-owner assumes the burden and sustains by proof the unreasonableness of the taking, the condemnor acquires a legal title to land illegally taken by legal methods.
The conclusion of the opinion on this point is at variance with accepted principles, opposed to the uniform procedure in related actions, against the clear policy of our law, and practically unsupported by authority. Indeed, the overwhelming weight of authority supports *Page 174 the position that the necessity must be made to appear by affirmative allegation of the petitioner. InNew Central Coal Co. v. George's Creek C. I. Co.,37 Md. 537, 564, the court say: "To justify the exercise of this extreme power, where the legislature has left it to depend upon the necessity that may be found to exist, in order to accomplish the purposes of the incorporation, as in this case, the party claiming the right to the exercise of the power should be required to show at least a reasonable degree of necessity for its exercise. Any rule less strict than this, with the large and almost indiscriminate delegation of the right to corporations, would likely lead to oppression, and the sacrifice of private right to corporate power." InDewey v. Chicago M. E. Ry. Co., 184 Ill. 426, 433,56 N.E. 804, it is said: Its (the condemnor's) right "is not a general power of condemnation, but is limited to cases where a necessity for resort to private property is shown to exist. Such necessity must appear upon the face of the petition to condemn." Lewis on Eminent Domain (Vol. 2, 3d Ed.) § 602, says: "If the necessity is denied, the burden is on the company to establish it." Cases cited in note 91; Highland B. G. M. Co. v. Strickley, 116 F. 852, 856; Kinney v. Citizens Water L. Co., 173 Ind. 252, 257, 90 N.E. 129; Louisiana Ry. Nav. Co. v. Xavier Realty, 115 La. 328, 340, 39 So. 1;Farnsworth v. Goodhue, 48 Vt. 209, 210; Stearns v.Barre, 73 Vt. 281, 295, 50 A. 1086; 15 Cyc. 632. Works on pleading and practice give this as the rule, and form books specify such allegations, as do numbers of applications in reported cases which have come under our eye. Reference may be had to 7 Ency. of Pl. Pr. p. 473, § 3, p. 525, § 8, p. 528, § 9; 7 Ency. of Forms, p. 565, Form No. 8330; 15 Cyc. 853, note 79.
We are not impressed by the argument of the majority, that unless its conclusion be accepted the condemnor *Page 175 with delegated authority, having determined the necessity existed, would be required to present proof of the question it had already decided. We think this argument assumes that the condemnor had the right to decide to take more than was reasonably necessary, which right, we understand, the opinion elsewhere, and properly, denies. Nor are we impressed by the insistence upon this course because the question involved is political and for the legislature or its delegated agent. A legal taking of property reasonably necessary for a public use is within the legislative power. An illegal taking of property not reasonably necessary for a public use is not within its power. We think the majority have misconceived the true meaning of some of the courts which hold this question a political one and primarily for the legislature. Such holding does not mean that the petitioner need not allege the necessity and prove the reasonableness of the use; at most, all that was meant was that the legislative or delegated determination might be taken as prima facie proof of the fact of necessity. The defendant thus has notice of this issue for it is a part of the application, and the burden never changes, resting at the beginning and the end upon the petitioner. Our method of proof in insurance cases affords a parallel example. Vincent v. MutualReserve Fund Life Asso., 77 Conn. 281, 58 A. 963.
There is no allegation in the application that the board voted that this taking was necessary for a public use. The court must imply it in order to find it, and this is contrary to the general rule of construction in eminent domain proceedings. And if this might be inferred, there is no allegation that the taking was in fact necessary for the public use. The motion to dismiss on these grounds was well taken.
The statute of 1893, under which the petitioner claims the right to determine the question of necessity, was *Page 176 amended and modified by General Statutes, § 2600, first enacted in 1895, and re-enacted in 1901. That statute provides: "Any city, town, borough, or corporation authorized by law to supply the inhabitants of any city, town, or borough with pure water for public or domestic use may take and use such lands, springs, streams, or ponds, or such rights or interests therein, as the Superior Court may on application deem necessary for the purposes of such supply."
If the determination of the question of necessity was committed to the board of water commissioners of Norwich by the amendment to the charter in 1893, this Act of 1895 was entirely inconsistent with it and, thereafter, made the exercise of the right to take property for a water-supply dependent upon a finding by the Superior Court that the taking was necessary. This follows from the undoubted rule that subsequent legislation repeals previous inconsistent legislation whether it expressly declares such repeal or not. 1 Sutherland on Statutory Construction (2d Ed.) § 247.
The Act of 1866 (6 Special Laws, p. 100) authorized Norwich to take its supply of water from the Yantic River, or any other stream, pond, or lake, as the necessities or convenience of the inhabitants might require, with the assent previously obtained of those who had the right thereto. Section 22 of this Act provided: "This Act shall be to all intents and purposes a public act, and may be altered, amended or repealed by the General Assembly." In the amended charter (Public Acts of 1871, p. 557, Chap. 46) the power of Norwich to take its supply of water was in identical terms conferred upon a board of water commissioners, under the direction of the court of common council; and § 98 provided: "This act shall be a public act, and may be altered, amended, or repealed at the pleasure of the General Assembly." In 1893 (11 Special Laws, p. 274) *Page 177 the charter was amended, empowering said board to "take any land, water, water rights or other property, or any franchise . . . for furnishing such supply of water as the necessities or convenience of the inhabitants of said city may require." For the first time the power to take in invitum was given. Section 4 of this amendment provided that "this act shall be a public act." In form of enactment these several Acts are public Acts; and in their purpose they are public. And further, the amendment of 1871 was enacted as a public Act and printed among the Public Acts. Thus the legislature in express terms declared these several Acts were public Acts.
General Statutes, § 2600, was first enacted in 1895. Public Acts of 1895, p. 556, Chap. 203. There is in it no express repeal of that part of the Norwich charter covering its subject-matter. It must be conceded that the subject-matter of this statute covers the whole subject of condemnation for a water-supply of every city in the State, including Norwich. The later statute is thus exclusive, and its provisions are manifestly repugnant to those of the Norwich charter relating to the same subject-matter. "Wherever a later statute is repugnant in its provisions to those of a prior one, there is a repeal to the extent of the repugnancy; and wherever a later statute is exclusive, that is, when it covers the whole subject to which it relates, the former is repealed." Fair Haven W. R. Co. v. New Haven,75 Conn. 442, 446, 53 A. 960. The Act of 1895 altered, by necessary implication, the charter amendment of 1893, and made the power of the water commissioners to take depend upon the decision of the Superior Court as to its necessity. Public Acts of 1901, p. 1378, chapter 178, re-enacted § 2 of the Act of 1895, as part of a general Act concerning the purity of water for public and domestic use, and expressly provided, in § 9, that *Page 178 "all acts and parts of acts inconsistent herewith are hereby repealed." Since these two Acts are clearly inconsistent, if it be true that the charter amendment of 1893 permits a taking without a judicial determination of the necessity, it must follow that if the charter were not by implication altered and amended by the Act of 1895, it was expressly altered and amended by the Act of 1901. If, contrary to the legislative declaration, the amendment of 1893 be held a special or local statute, the same result must be reached. They cover the same subject. While a repeal or amendment by implication of an earlier special statute by a general statute is not favored, it will result, to the extent of the repugnancy, by express reference or necessary implication, where the later statute covers the same subject.Hartford v. Hartford Theological Seminary, 66 Conn. 475,485, 34 A. 483. In this case there is a necessary implication of such repeal of power to take.
It is highly desirable that the same right to take ininvitum and the same procedure may prevail with all corporations having the power to supply our communities with water. Hence it is reasonable to infer that the legislature intended by the Act of 1895 to bring all such corporations within the established policy of the law, viz.: a uniform system of procedure for determining the issue of necessity involved in every condemnation to secure a water-supply. We have before had occasion to declare the provisions of a local charter repealed by implication by a general statute. We held a general statute relating to health repealed, by implication, the provisions of the New London charter covering the same subject-matter. Braman v. New London, 74 Conn. 695,698, 51 A. 1028. And in Southport v. Ogden,23 Conn. 128, we held a by-law of a borough, prohibiting the taking of oysters under a penalty, abrogated by a general law of the State, passed subsequent to the *Page 179 granting of the charter, prohibiting the same thing. So that whether the Act of 1893 be regarded as a public or a private Act, the conclusion must result that it was amended and altered by the Act of 1895, as amended by that of 1901, now General Statutes, § 2600.
The suggestion of the opinion that this position is untenable by reason of General Statutes, § 4931, is, we think, without force. So much of this section as, in effect, recites that acts of incorporation are not repealed by the revision, was in the Revision of 1888, and in existence at the date of the passage of the Act of 1895, as well as that of 1901. The charter of Norwich stood as it had been amended by the Public Acts of 1895 and 1901, and General Statutes, § 4931, provides that the charter as amended up to that time is not affected by the Revision repealing all public acts except in certain specified cases. General Statutes, § 4931, protects the charter, in its condition after the amendments of 1895 and 1901, against a repeal by the Revision. The section relied on (§ 4931) has nothing to do with the question whether the Act of 1895, or that of 1901, in fact amended the charter.
The charter is as general and indefinite as to the time of the taking as it is as to the location of land and water rights to be taken. The board of water commissioners may renew this proceeding at any time and vote to take the pond of any manufacturing company whose industry may be the support of an entire community. And the burden of proving the unreasonableness of this action, the opinion of the court casts upon the owner whose property is to be taken. We think such a grant of power contrary to public policy, essentially unreasonable and unjust and subversive of fundamental principles, and that it ought not to be sustained because it is not due process of law.
Norwich can secure all the property and water rights *Page 180 it requires by bringing its application, under General Statutes, § 2600, to the Superior Court, and that court will award it all such as may be proven necessary for such purposes; more than this it ought not to be permitted to condemn.
I think the motion to dismiss should have been granted, and the demurrer to the application sustained.
In this opinion RALPH WHEELER, J., concurred.