The legislative power of this State is vested in the General Assembly subject to fewer restrictions than those prescribed by the constitutions of most of her sister States. The Act of 1903, passed for the relief of the city of Waterbury, provides that if it cannot agree with the owner of any estate or interest which it desires to appropriate for the purpose of disposing of its sewage, as to the amount of compensation to be paid for the same, any judge of the Superior Court, on the application of either party and notice to the other, "shall appoint" a committee to examine the premises and "estimate the amount of the compensation which shall be paid to any person for any damage, injury, or loss which he has or shall suffer by reason of the past or future acts of said city in disposing of its sewage; and said committee may fix such compensation for all future damages to any person either at a gross sum to be paid within a time named, or at a sum to be paid annually *Page 446 either during a stated number of years or so long as said city shall continue to cause such damage, injury, or loss;" their doings to be reported to the judge who appointed them, for approval.
Following this statute, the city applied to Judge RalphWheeler for the appointment of such a committee "to estimate the amount of compensation which shall be paid to the said Platt Brothers Company for any damage, injury, or loss which it has suffered by reason of the past acts of said city in disposing of its sewage in the Naugatuck River; and to fix all future damages at a sum to be paid annually to said Platt Brothers Company by said city, so long as said city shall continue to cause such damage, injury, or loss."
The city thus proposed to determine the compensation to be paid to the defendant for any estate and interest which it had already appropriated to its own use for the disposal of its sewage, and also for such as it intended to appropriate and should thereafter appropriate to the same use for a period which it left indefinite. I agree with my associates that the statutory provision for estimating the compensation to be paid for any past appropriation could only become operative by the consent of the defendant. I disagree with them as to the total invalidity of the provision for estimating the compensation to be made for a future appropriation.
It is often necessary to use or to take private property temporarily for public purposes. The common law allowed this to be done without compensation in certain cases, as where travelers over a foundrous highway were allowed to proceed over land of the abutting proprietor. The General Assembly was of opinion that it might be necessary for the plaintiff to pollute temporarily the defendant's property with its sewage, and that this necessarily might continue for an indefinite number of years. The city is an important instrument of government. It is not for the public interest that it should take permanently what it needs only temporarily. It was therefore competent for the legislature to authorize a temporary taking of the defendant's property, on making just compensation. The statute, under which such authority is *Page 447 now claimed by the plaintiff, must be so construed, if it be reasonably possible, as to support its validity. In my opinion it can be construed as authorizing a taking for one year, if just compensation for one year's use be made at the commencement of such year. The greater includes the less. One year is none the less a stated number of years, because it is the least number. In authorizing compensation to be fixed at a sum to be paid annually during a stated number of years, the legislature seems to me to have authorized compensation for a year's appropriation of the riparian rights, to be assessed in such a proceeding as this, at a sum to be paid at the beginning of that year.
As one of the grounds specified for the demurrer was that a committee could not be appointed simply to make the estimate mate asked for in the application; as that mode of estimate is objectionable on the grounds stated in the opinion of the court; and as the plaintiff offered no amendment of its application, though ample opportunity was given for it, I concur in the judgment. I dissent from the conclusion that the Act of 1903 is wholly in excess of the legislative power, except so far as parties may consent to its provisions.