(111 A.)

Section 76 of the charter of the defendant city, granted in 1895 (12 Special Laws, p. 454), after prescribing the procedure of the Bureau of Assessments in assessing damages and benefits for public work executed by the city, provides as follows:

public work for which the land was taken [ PRENTICE, C. J. (after stating the facts has not yet been completed, and the city has as above). [1] The sum of $700 which the refused to pay the plaintiffs the sum so as- plaintiffs seek to recover is the amount assessed in their favor, although demand there- certained and fixed in February, 1917, in the for has frequently been made. manner prescribed by the defendant's charter as the amount of damages due to them for the defendant's taking of a portion of their land for the layout and construction of a public street. Were it not for certain language contained in section 1 of chapter 322 of the Special Acts of 1905, amendatory of a "Upon the completion of the work assigned section of the City Charter granted in 1895 it, said bureau shall make a report of all its and not otherwise amended or repealed in doings pertaining thereto, to the board of alder- any respect having present pertinence, the men. Said board may adopt said report or $700 would have become payable to the plainmodify the same as it may deem best, and when tiff and collectable by him "upon the first such report or modification shall have been week day after the next regular meeting of adopted and recorded in the records of the the board of finance following the publication board of aldermen, and when the damages of the assessments, which was required to be shall have been paid to the person whose property is to be taken or damaged for such pub-made within one week after their entry upon lic purposes, or shall have been deposited with the records of the board of aldermen." Kelly the city treasurer to be paid to such person v. Waterbury, 83 Conn. 270, 272, 76 Atl. 467, when he shall apply for the same, then each of said assessments shall be deemed to have been legally made, and if the matter relate to the taking of land, the land described in the order of said board of aldermen shall be and remain taken and devoted to the public use for which it shall have been so designated. Such assessment shall be published by the clerk of said city within one week after such record, and said sums shall be payable upon the first week day after the first regular meeting of the board of finance after such publication."

Section 114 of the charter (12 Special Laws, p. 465) deals with the subject of benefits assessed against property owners, and prescribes the method of securing and enforcing their payment. This latter section was amended and amplified by section 1 of chapter 322 of the Private Acts of 1905. The section as thus amplified and amended deals solely with the subject of benefits and makes no reference directly or indirectly to that of damages, save in a single sentence as follows: "No unpaid assessment for such layout or grade of new streets shall be transmitted by the collector of taxes to the city attorney until after such assessment shall become collecta

ble by reason of the work having been complet

ed; and no assessment for either damages or benefits upon any such layout or grade shall be payable or collectable until such work has been completed."

The defendant relies upon the language of the last portion of this extract in support of its claim that the amount of damages sued for is not yet payable.

It is agreed that, if the plaintiffs are entitled to recover, judgment should be rendered in their favor for $700, together with the interest thereon from February 5, 1917. Edward B. Reiley and John J. O'Neill, both of Waterbury, for plaintiffs.

Ulysses G. Church and Philip N. Bernstein, both of Waterbury, for defendant.

468; 12 Special Laws, p. 454, § 76. The defendant contends that by force of this amendment the assessed sum is not yet payable, since the public work for which the land was taken has not yet been entirely completed. If it be assumed that the language of the 1905 amendment relied upon to produce this result would, constitutional limitations aside, be so construed, it would fail as being in violation of that provision of our Constitution which forbids the taking of private property for public use without just compensation therefor. Article 1, § 11. The $700 assessment of damages in this case, like all other similar assessments resulting from a property taking, represents the amount of damages suffered by the property owner by reason of the taking ascertained as of the If its payment is not

time of its occurrence.

made by the condemnor promptly or at least within a reasonable time, the result is a loss of the use of the money for the period of the delay. If an attempt be made to provide legislative authority for such delay by a direction that the assessment, although made and effective, should not be payable or col time as, for example, here until the complelectable until some indefinitely postponed tion of the work for which the property is taken, however long in the future that might be, that attempt must be abortive as one professing to authorize the forbidden act of taking private property for a public use without just compensation therefor. "Just compensation' means a fair equivalent in money, which must be paid at least within a reasonable time after the taking, and it is not within the power of the Legislature to substitute for such present payment future obligations, bonds, or other valuable security." Waterbury v. Platt Bros. & Co., 76 Conn. 435, 440, 56 Atl. 856, 858. It matters not whether the property thus taken be regarded as the land condemned or the amount of assessed dam

crease of teachers' compensation not within constitutional inhibition.

ages withheld for the condemnor's use or 14. Schools and school districts ~144(4)—Inwhether the taking be a permanent one or one for a period of time only. In either aspect of the matter and in either event, the result will be the appropriation of private property without just compensation.

The prohibition of the Twenty-Fourth Amendment to the state Constitution exhausts itself in forbidding the payment or grant by [2] If therefore the amendment of 1905 public bodies named therein of gratuities or extra compensation in addition to, in excess of, purports on its face to authorize this forbid or larger than, the compensation prescribed by den thing, it is in so far unconstitutional law or settled by contract, and does not forand inoperative with the result that the orig-bid the establishment by the regularly ordained inal charter provision respecting the payment manner of compensation for future services at of damages remains unimpaired and in force. Kelly v. Waterbury, 83 Conn. 270, 272, 76 Atl. 467. If it does not so purport, the same result follows. In either event section 76 of the Act of 1895 remains effective to make the assessed amount of damages due and payable to the plaintiff and collectable by him as of the time therein stated.

The superior court is advised to render judgment for the plaintiffs, and that they recover of the defendant the sum of $700, together with interest thereon from February 5, 1917. Costs in this court will be taxed in favor of the plaintiffs.

a sum larger than that already established, and did not forbid a town school committee, on threats of school-teachers to resign, which right they had under their contracts, from granting an increase in compensation for the remainder of the year.

5. Mandamus 109-Proper to compel town treasurer to pay salaries granted.

Where school committee of town granted teachers, threatening to resign, an increase in pay for the remainder of the year, and town treasurer refused to pay orders for the increase, and there was grave danger that the school-teachers of the town would tender their resignations if such orders were not honored,

In this opinion the other Judges concurred. the committee properly resorted to mandamus

proceedings to compel the performance by the defendant of his legal duty to honor such orders.

Appeal from Superior Court, New Haven County; James H. Webb, Judge.

Application by the State, on the relation of Ralph J. Marsh and others, as members of the town school committee of Wallingford, requiring William J. Lum, Town Treasurer, to pay orders drawn by the committee on him as Town Treasurer in favor of teachers. Judgment for defendant, quashing alternative writ and dismissing the application, and plaintiffs appeal. Error.

The application alleges the following facts: In July, 1919, Hazel M. Fowler and Grace S. Gilbert were employed by the town school committee of the town of Wallingford to serve as teachers in the public schools of that town during the school year beginning on September 8, 1919, at stated salaries. Each

2. Contracts 90-Actual forbearance evi- of them, as did all other teachers in the town dence of agreement to forbear.

Actual forbearance is evidence of an agreement to forbear, and, in the absence of proof to the contrary, is often held to be incompatible with any other condition.

3. Contracts

52-Promise to do something to promisor's detriment is a good consider

ation.

If one by a promise induces the promisee,

or some other person on account of or for the benefit of the promisee, to do some act or part with some chattel, title, interest, privilege, or right which the law regards as of some value, there is sufficient consideration for the promise.

for that year, entered into a written contract to that end. Among the provisions contained in all these contracts was one permitting their termination by the teacher at any time, except during the last school term of the year, upon the giving of notice in some cases of their intention so to do. Pursuant to their 30 days and in others four weeks in advance contracts the two teachers named, as well as all others in the town, entered upon the performance of their duties. On October 31, 1919, the members of the school committee met representatives of the teachers at the latter's instigation, when a request was presented to them by and on behalf of the teach

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(111 A.)

Livingston W. Cleaveland and Charles E. Clark, both of New Haven, for appellants. Oswin H. D. Fowler, of Wallingford, for appellee.

ers that they be granted an increase of $300 [ to be drawn in favor of the school-teachers each for the current school year. At this of the town in accordance with the vote of time the committee was asked for a reply to the town on December 17, 1919, and the town the petition for an increase, on the ground school committee on February 9, 1920, or that many of the teachers had received show cause to the contrary, was issued. offers of positions with greater remuneration than they were at present receiving, and that a decision must be made on such offers. The committee thereupon notified the teachers that it would grant an increase of $150 per teacher, and would ask for an appropriation for the payment of such increase at a PRENTICE, C. J. (after stating the facts special town meeting of the legal voters of as above). It is and was the duty of the dethe town. Such meeting was held on the 17th fendant town treasurer to honor the drafts day of December, 1919, at which $11,000 was drawn upon him by the town school commitappropriated for the purpose of making such tee in payment of legal obligations incurred increase effective January, 1920, and a vote by it in the maintenance of the public schools passed, authorizing and empowering the com- of the town. General Statutes, §§ 983, 986. mittee to increase the pay of all teachers The fundamental question in the case, therethen employed in the public schools of the fore, is whether or not the drafts here intown for the term beginning January, 1920, | volved, drawn by the committee to the order by such amount or amounts as the committee of two teachers and all other drafts similarly should determine. At a meeting of the committee held on February 9, 1920, it was voted to increase the salaries of each full-time teacher by the sum of $150 for services to be rendered for the balance of the school year commencing February 10, 1920.

drawn for the like purpose, constitute obligations incumbent upon the town to meet. The drafts specifically referred to in the application for the writ were drawn for amounts agreed by the committee to be paid to the payees respectively as compensation for their The application for the issuance of the services rendered as teachers. If they and writ, after alleging the above facts, further other orders which may have been or may averred that as a consequence of the increase hereafter be drawn to teachers in the town in salary so voted the teachers did not avail schools under similar circumstances do not themselves of the privilege of resignation represent legal obligations of the town it contained in their original contracts, but ac- must be for either one of two reasons, to wit: cepted the increase, and on or about Feb (1) That the agreement made by the commitruary 20, 1920, received their first salary tee to pay the increases in salary which they payments at the increased rates, such pay-represent was an illegal and inoperative one ments being made by the defendant upon for reasons other than constitutional; or (2) orders of the town school committee; that that such agreement was forbidden by article thereafter on February 26, 1920, the de- 24 of the Amendments of our state Constitufendant notified the committee in writing that he should thereafter refuse to make payments to the teachers of the town on the increased basis, and has since refused to honor orders of the school committee drawn on such basis.

tion.

[1] In October, 1919, when the agreement referred to was made, the teachers were each under a contract with the committee to serve in their several capacities for the then school year at stated salaries. At that time the The application further alleged that on parties to the existing contracts, for reasons March 11, 1920, the committee issued its not hard to seek, in effect mutually agreed to orders to Hazel M. Fowler and Grace S. Gil- rescind them and to substitute therefor others bert aforesaid for the payment of $15 each, of similar purport, but calling for larger salthe amount of salary increases payable to ary payments for the balance of the year. them in accordance with the votes of in- This it was perfectly competent, constitutioncrease, that the defendant declined to honor al limitations aside, for them to do, and there and pay these orders, and that there was was not wanting a consideration to render the grave danger that the public school-teachers new contracts binding and enforceable. The of the town would avail themselves of the teachers surrendered their existing contract provision of their contracts and tender their right to forthwith give notice of their purresignations, leaving the committee unable to pose to terminate their several employments secure teachers in consequence of the defend- at the end of four weeks or a month from ant's refusal to make payments in conform-date, and forbore to exercise that right, while ity with the committee's action in that re- the committee avoided a threatened disaster, gard.

An alternative writ, reciting the foregoing facts, and requiring the defendant to honor and pay the orders issued to the Misses Fowler and Gilbert and all other orders drawn or

resulting from resignations by teachers to accept employment elsewhere upon better terms and the possible closing of schools as a consequence of such resignations. The teachers got a promise of more pay and the school

FAIR v. HARTFORD RUBBER WORKS. (Supreme Court of Errors of Connecticut.

Aug. 5, 1920.)

(111 A.)

1. Master and servant 385(114) - Compensation as for "total permanent incapacity" held allowable to one-eyed employé for loss of sight.

Under Workmen's Compensation Act (Gen. St. 1918, §§ 5351, 5352) employé, who had previously lost sight of left eye, and was hit in the right eye, so that he was rendered totally and permanently blind, held entitled to award for total permanent incapacity under section 5351, i. e., to a weekly compensation of onehalf his weekly earnings at the time of the injury for 520 weeks.

2. Master and servant

419-Compensation commissioner empowered to reopen award for mistake of fact.

Under the Workmen's Compensation Act (Gen. St. 1918, §§ 5355, 5361), compensation commissioner, who, supposing employé deprived of sight of right eye was not one-eyed man, as was in fact the case, approved voluntary settlement on that basis, held empowered to reopen his award to make proper award on a basis of total and permanent incapacity through blindness; the rules governing reopening of decrees for mistake, alleged by nondiligent private suitors, being inapplicable to such awards in which the state is interested.

capacity substituted therefor. On the evidence introduced at the hearing it appeared that the claimant, prior to the injury recited in the contract of voluntary settlement, had totally lost the sight of his left eye, and that as a result of the injury to his right eye in combination with his antecedent infirmity, claimant was totally and permanently blind. No evidence was introduced at the hearing to show that the incapacity of the claimant since the voluntary agreement of settlement was entered into had increased, decreased, or ceased, or that any changed conditions of fact had arisen with respect thereto.

The ques

tions reserved for our decision are whether the commissioner under the conditions stated has power to reopen the claim, and whether the claimant is entitled to compensation for total incapacity under section 5351 of the General Statutes, or for partial incapacity under subsection "G," of section 5352.

Albion B. Wilson, of Hartford, for plaintiff.

Charles Welles Gross, of Hartford, for defendant.

BEACH, J. (after stating the facts as above). [1] We take up first the question of the substantive rights of the claimant under the Compensation Act as it stood at the time of the injury; and, having regard to the gen

Case Reserved from Superior Court, Hart-eral scheme of compensation set forth in secford County; William M. Maltbie, Judge.

Action by George Fair against the Hartford Rubber Works. On reservation of questions of law arising on formal award by the Compensation Commissioner for the First Congressional District upon the facts found by him. Superior court advised the commissioner has power to reopen his award, etc., and to render judgment accordingly.

It appears from the finding of the commissioner: That on the 16th day of May, 1919, he approved a voluntary agreement of settlement between the claimant and the respondent, reciting that the average weekly wage of the claimant, computed in accordance with the statute, was $16.84, and that on or about January 1, 1919, the claimant sustained an injury arising out of and in the course of his employment, said injury being described in said agreement as follows:

tions 5351 and 5352, we are of opinion that the claimant was plainly entitled, under the terms of the statute, to an award for total and permanent incapacity under section 5351; that is to say, to a weekly compensation equal to one-half of his average weekly earnings, at the time of the injury, for 520 weeks. Section 5351, which carries the subtitle. "Compensation for Total Incapacity," provides for compensation based on one-half of the average weekly wage of the claimant at the time of the injury, to be continued not longer than the period of total incapacity, and in no event longer than 520 weeks. Then follows a schedule of injuries, which are to be considered as causing total incapacity and compensation paid accordingly. These include total and permanent loss of sight in both eyes and other injuries equally serious. Section 5352 carries the subtitle, "Compensation for Partial Incapacity," and provides that in such case the weekly compensation "shall be equal to half the difference between his average weekly earnings before the injury and the amount he is able to earn thereafter," to -and that the respondent contracted to pay continue during the period of partial incathe sum of $8.42 for the period of 104 weeks pacity, but not longer than 312 weeks; but from January 26, 1919. Some three months for certain enumerated injuries a schedule of after the approval of this voluntary settle-specific compensation periods is fixed, graded ment the claimant applied to the commission- as to duration according to the severity of er to have the original award set aside, and the injury, and as to these fixed awards the for an award as for total and permanent in- section provided that they should be "in lieu

"Hit in right eye with piece of rubber, which reduced the sight of right eye to less than one-tenth of normal vision,"

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For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
111 A.-13

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