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Dattco, Inc. v. Commissioner of Transportation

Supreme Court of Connecticut

December 27, 2016


          Argued Date: October 20, 2016

          Jeffrey J. Mirman, with whom was David A. DeBas-sio, for the appellants (plaintiffs).

          Eileen Meskill, assistant attorney general, with whom were Charles H. Walsh, assistant attorney general, and, on the brief, George Jepsen, attorney general, and Alan N. Ponanski, assistant attorney general, for the appellee (defendant).

          Palmer, Zarella, Eveleigh, McDonald, Robinson and Vertefeuille, Js.


          ZARELLA, J.

          General Statutes § 13b-36 (a) permits the defendant, the Commissioner of Transportation (commissioner), to take by eminent domain ‘‘any land, buildings, equipment or facilities'' if the commissioner finds that their taking is ‘‘necessary for the operation or improvement of transportation services.'' In this appeal, we must determine whether the commissioner's power to take ‘‘facilities'' includes the power to take a government issued certificate permitting a bus company the right to operate over a given route. We conclude that it does not.


         The parties do not dispute the facts relevant to this appeal. The plaintiffs are four bus companies operating buses over routes in and around the cities of Hartford and New Britain.[1] Each plaintiff holds a certificate of public convenience and necessity, granting it authority to operate a bus service over a specified route. The certificates were issued under predecessor statutes to what is now General Statutes § 13b-80. Section 13b-80 provides that ‘‘[n]o person, association, limited liability company or corporation shall operate a motor bus without having obtained a certificate . . . specifying the route and certifying that public convenience and necessity require the operation of a motor bus or motor buses over such route.''

         The certificates in question were each issued before October 1, 1979. Most were issued by the predecessor agency to the Division of Public Utility Control (DPUC), with one of them issued by the Greater Hartford Transit District. Before October 1, 1979, the DPUC's predecessor and transit districts held exclusive authority to regulate private bus service and to issue certificates of public convenience and necessity to private bus companies. See, e.g., General Statutes (Rev. to 1975) §§ 16-309 and 16-312a; see also General Statutes (Rev. to 1975) § 7273d. Effective October 1, 1979, however, the legislature transferred the authority to regulate bus companies to the Department of Transportation; see Public Acts 1979, No. 79-610, § 9 (P.A. 79-610); and the legislature amended P.A. 79-610 in 1980 to make clear that any certificates issued before the transfer of authority would ‘‘remain valid unless suspended or revoked . . . .'' Public Acts 1980, No. 80-25, § 2, codified at General Statutes (Rev. to 1981) § 13b-80. The transit districts have retained their power to regulate bus service within their respective jurisdictions. See General Statutes § 7-273d. Although some of the certificates have been amended since they were issued, neither the commissioner nor the Greater Hartford Transit District has moved to suspend or revoke them.

         Recently, however, the state constructed a new designated busway between New Britain and Hartford. According to the plaintiffs, the new busway incorporates some of the routes over which the plaintiffs currently operate, and the state sought to hire new companies to operate buses over these routes. The plaintiffs claim that their certificates give them exclusive rights to operate over the routes at issue, precluding the commissioner from authorizing other operators to use them unless the commissioner properly suspends or revokes their certificates for cause.

         In a separate action that is not the subject of this appeal, the plaintiffs sought to enjoin the commissioner from allowing other companies to operate motor buses over their designated routes. The trial court in that case issued a preliminary injunction precluding the commissioner from transferring the routes at issue to new operators pending the outcome of the litigation.

         While that case was pending, however, the commissioner condemned the certificates pursuant to the state's power of eminent domain, prompting the plaintiffs to file the actions that are the subject of this appeal. The plaintiffs each claim that the commissioner lacks the statutory authority to condemn their certificates. They seek permanent injunctive and other relief preventing the commissioner from carrying out the condemnations.

         The trial court consolidated all of the actions, and the parties filed motions for summary judgment. The plaintiffs argued that the commissioner lacked the authority to take the certificates as a matter of law, whereas the commissioner claimed that the General Statutes clearly vested him with such power. The disagreement between the parties centered on the term ‘‘facilities, '' as used in § 13b-36 (a), which vests the commissioner with the power of eminent domain. That statute authorizes the commissioner to take ‘‘land, buildings, equipment or facilities'' if he deems their taking necessary. General Statutes § 13b-36 (a). The commissioner argued that the word facilities has a broad meaning and includes anything that promotes the ease of any action. According to the commissioner, the certificates are ‘‘facilities'' inasmuch as they enable the plaintiffs to carry out their businesses. The plaintiffs disagreed, however, claiming that the term ‘‘facilities, '' as used in the statute, refers only to tangible assets, not intangible rights like the certificates at issue, which represent a government bestowed operating right.

         The trial court denied the plaintiffs' motion for summary judgment but granted the commissioner's motion for summary judgment. The trial court agreed with the commissioner's interpretation and concluded that § 13b-36 (a) gave the commissioner authority to condemn the certificates. The trial court then rendered judgment in favor of the commissioner in each of the consolidated cases. This appeal followed.

         Because the decision to grant a motion for summary judgment is a question of law, our review of the trial court's decision is plenary. See, e.g., Rocco v. Garrison, 268 Conn. 541, 548-49, 848 A.2d 352 (2004).


         The commissioner may condemn the certificates at issue only if the legislature has delegated that authority to him by legislative act. The plaintiffs each hold a property right in their own certificates that cannot be taken by the state without due process of law. See Gray Line Bus Co. v. Greater Bridgeport Transit District, 188 Conn. 417, 423, 449 A.2d 1036 (1982). The parties agree that the plaintiffs can be deprived of their rights in their certificates only if the certificates are suspended or revoked for cause pursuant to § 13b-80, or condemned under the state's eminent domain power. See id.; see also General Statutes § 13b-80. The commissioner has not attempted to suspend or revoke the certificates, so he may terminate the plaintiffs' rights only through condemnation. The power to condemn resides with the legislature, but the commissioner may exercise this power if the legislature has delegated it to him. E.g., Northeastern Gas Transmission Co. v. Collins, 138 Conn. 582, 586-87, 87 A.2d 139 (1952). When the legislature delegates eminent domain power, we will enforce the grant of power consistent with the purposes of the legislation, but we interpret the scope of the power granted strictly, and in favor of the property owner and against the condemner. Pequonnock Yacht Club, Inc. v. Bridgeport, 259 Conn. 592, 601, 790 A.2d 1178 (2002). Moreover, when the legislature delegates eminent domain power, ‘‘the extent of the power is limited by the express terms or clear implications of the statute authorizing its exercise.'' Northeastern Gas Transmission Co. v. Collins, supra, 592. There is no question that the state holds the power to condemn the certificates-the question before us is whether the legislature has delegated that power to the commissioner.

         The commissioner claims that this delegation is found in General Statutes § 13b-36 (a). As in the trial court, the parties disagree in this appeal whether the term ‘‘facilities, '' as used in that statute, refers only to tangible assets or whether it also allows the commissioner to take intangible operating rights. We conclude that § 13b-36 (a) does not permit the commissioner to take intangible operating rights like those reflected in the certificates in question.


         We look first to the text of the statute at issue to determine whether its terms provide the commissioner the power he claims. See General Statutes § 1-2z. Section 13b-36 (a) confers eminent domain powers on the commissioner and describes the types of property that he may take using this power. That statute provides: ‘‘The commissioner may purchase or take and, in the name of the state, may acquire title in fee simple to, or any lesser estate, interest or right in, any land, buildings, equipment or facilities which the commissioner finds necessary for the operation or improvement of transportation services. The determination by the commissioner that such purchase or taking is necessary shall be conclusive. Such taking shall be in the manner prescribed in subsection (b) of section 13a-73 for the taking of land for state highways.'' (Emphasis added.) General Statutes § 13b-36 (a).

         The legislature did not define the term ‘‘facilities'' in this statute, so we interpret the term according to its common meaning; General Statutes § 1-1 (a); and we look to the dictionary to glean that meaning. See, e.g., Potvin v. Lincoln Service & Equipment Co., 298 Conn. 620, 633, 6 A.3d 60 (2010). Webster's Third New International Dictionary sets forth five distinct meanings for the word ‘‘facility, '' two of which are relevant to the statute at issue: (1) ‘‘something (as a hospital, machinery, plumbing) that is built, constructed, installed, or established to perform some particular function or to serve or to facilitate some particular end''; and (2) ‘‘something that promotes the ease of any action, operation, transaction, or course of conduct . . . .'' Webster's Third New International Dictionary (2002) p. 812. Although the first definition suggests a tangible item based on the examples provided in the definition, the commissioner seizes on the second, broader interpretation. He argues that it is broad enough to include anything tangible or intangible attendant to the plaintiffs' businesses.

         We disagree that the commissioner's preferred definition of ‘‘facilities'' is broad enough to encompass the certificates at issue because they do not merely ‘‘promote the ease'' of the plaintiffs' business but, in fact, authorize it in the first place. To be sure, this broader definition may, standing alone, refer to intangible rights that promote the ease of a given action-like contract rights-and courts have concluded as much. See, e.g., Hartford Electric Light Co. v. Federal Power Commission, 131 F.2d 953, 961 (2d Cir. 1942) (concluding that power company's ‘‘facilities'' included company's contracts and accounts), cert. denied, 319 U.S. 741, 63 S.Ct. 1028, 87 L.Ed. 1698 (1943). But the operating rights reflected in the certificates are of a different character than something that promotes the ease of an action. They are not used by the plaintiffs to ease their provision of service or to better their service to passengers; the certificates provide the important, fundamental authority to conduct the service in the first place. We are not aware of any case that has examined the meaning of the term ‘‘facilities'' and interpreted that term as encompassing a government issued operating right. In fact, in the only other case brought to our attention that has considered a similar question, the court concluded that the term ‘‘facility'' does not refer to a company's operating rights.[2] Lynnwood Utility Co. v. Franklin, Tennessee Court of Appeals, Docket No. 89-360-II (April 6, 1990) (determining, in condemnation case, that ‘‘[a] [c]ertificate of [c]onvenience and [n]ecessity is not a facility'').

         We therefore conclude that interpreting ‘‘facilities'' to refer not just to what makes an action easier, but also to the very authority that authorizes the action altogether, would unduly stretch the meaning of that term too far. This is especially true considering that we must construe a delegation of eminent domain power strictly and against the power of the condemner. Pequonnock Yacht Club, Inc. v. Bridgeport, supra, 259 Conn. 601. Adopting the commissioner's broad interpretation would contradict that principle.


         Even if we were to assume, however, that the term ‘‘facilities, '' standing alone, could arguably refer to operating rights, the context in which that term is used in the provision at issue and other related provisions convinces us that the legislature did not intend for the term ...

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