Opinion
SC 19558
12-27-2016
DATTCO, INC. v. COMMISSIONER OF TRANSPORTATION Collins Bus Service, Inc. v. Commissioner of Transportation Nason Partners, LLC v. Commissioner of Transportation The New Britain Transportation Company v. Commissioner of Transportation
Jeffrey J. Mirman, with whom was David A. DeBassio, Hartford, for the appellants (plaintiffs). Eileen Meskill, assistant attorney general, with whom were Charles H. Walsh, Hartford, assistant attorney general, and, on the brief, George Jepsen, attorney general, and Alan N. Ponanski, assistant attorney general, for the appellee (defendant).
Jeffrey J. Mirman, with whom was David A. DeBassio, Hartford, for the appellants (plaintiffs).
Eileen Meskill, assistant attorney general, with whom were Charles H. Walsh, Hartford, 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.
I
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. 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) § 7–273d. 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.
The plaintiffs are Dattco, Inc., Collins Bus Service, Inc., Nason Partners, LLC, and The New Britain Transportation Company. Each brought a separate action against the commissioner to enjoin him from taking their respective certificates, and those actions were consolidated.
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).
II
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. City of 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, at 592, 87 A.2d 139. 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.
A
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. Lynnwood Utility Co. v. City of Franklin , Tennessee Court of Appeals, Docket No. 89–360–II, 1990 WL 38358 (April 6, 1990) (determining, in condemnation case, that "[a] [c]ertificate of [c]onvenience and [n]ecessity is not a facility").
One court has interpreted the term "facilities" to include a company's operating rights, but the court reached that conclusion because a contrary construction in that case would have rendered the statute at issue unconstitutional. See Mississippi Power & Light Co. v. Clarksdale, 288 So.2d 9, 12 (Miss. 1973) (concluding that statute "[could not] be constitutionally applied in [the] case unless the word ‘facilities' [was] construed as including [a power company's] operating rights"). There was no claim in that case that the ordinary meaning of the term "facilities" extended to operating rights. See id., at 11.
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. at 601, 790 A.2d 1178. Adopting the commissioner's broad interpretation would contradict that principle.
B
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 "facilities," as used in § 13b–36 (a), to encompass the certificates at issue.
In addition to considering the dictionary definition of the term "facilities," we must consider its meaning also in the context that it is used in the provision at issue and in related provisions. See General Statutes § 1–2z. The text of the provision at issue, § 13b–36 (a), strongly suggests that the term "facilities" refers to tangible assets, not intangible operating rights.
Section 13b–36 (a) groups the term "facilities" with three other nouns describing what the commissioner may condemn, namely, "land, buildings, equipment," and each refers to tangible objects. Typically, when a statute sets forth a list or group of related terms, we usually construe them together. See, e.g., Staples v. Palten , 214 Conn. 195, 199–200, 571 A.2d 97 (1990). This principle—referred to as " ‘noscitur a sociis' "—acknowledges that "the meaning of a particular word or phrase in a statute is ascertained by reference to those words or phrases with which it is associated." Id., at 199, 571 A.2d 97. As a result, broader terms, when used together with more narrow terms, may have a more restricted meaning than if they stand alone. See id. ("noscitur a sociis ... acknowledges that general and specific words are associated with and take color from each other, restricting general words to a sense ... less general " [emphasis added; internal quotation marks omitted] ).
The legislature's grouping of the term "facilities" with other nouns that all denote tangible objects favors a conclusion that the term "facilities" also refers to tangible objects other than land, buildings, and equipment that might be used in a transportation system. Moreover, interpreting "facilities" to mean only tangible items does not render it superfluous or redundant with respect to the terms "land," "buildings," or "equipment," as the commissioner suggests. The term "facilities" embraces numerous tangible items—other than land, buildings, or equipment—including bridges; General Statutes § 13b–56 ; docks; General Statutes § 13b–56 ; see also Coeur D'Alene & St. Joe Transportation Co . v. Ferrell , 22 Idaho 752, 758, 128 P. 565 (1912) ; side railroad tracks that are part of a rail system; Tucker v. St. Louis–San Francisco Railway Co. , 298 Mo. 51, 58, 250 S.W. 390 (1923) ; dams and reservoirs; Wright v. Sabine River Au thority , 308 So.2d 402, 406, 410 (La. App. 1975) ; and even horses. Bernardine v. New York , 294 N.Y. 361, 365, 62 N.E.2d 604 (1945). On the other hand, interpreting "facilities" to broadly refer to anything that supports a given action, as the commissioner argues and the dissent agrees, would render superfluous the terms "land," "buildings," and "equipment" in § 13b–36 (a) because those items would already be encompassed within the broad meaning of "facilities" urged by the commissioner. See, e.g., Lopa v. Brinker International, Inc ., 296 Conn. 426, 433, 994 A.2d 1265 (2010) ("[b]ecause [e]very word and phrase [of a statute] is presumed to have meaning ... [a statute] must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant" [internal quotation marks omitted] ).
In addition, other provisions in title 13b of the General Statutes, which governs the powers of the commissioner, similarly indicate that the legislature intended for facilities to refer to tangible assets. See, e.g., In re Williams D ., 284 Conn. 305, 313, 933 A.2d 1147 (2007) ("[i]n determining the meaning of a statute ... we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction" [internal quotation marks omitted] ). The term "facilities" is often paired with other tangible objects throughout title 13b, as in § 13b–36 (a). See, e.g., General Statutes § 13b–34 (a) (referencing "equipment or facilities"); General Statutes § 13b–34 (h) (referencing "transportation equipment and facilities"); General Statutes § 13b–56 (referring to "facilities and structures" and "structures and facilities"). Most significantly, in many instances, the legislature has used the term "facilities" in a manner that would be coherent only if "facilities" meant a tangible asset. For example, General Statutes § 13b–4d (b) allows the commissioner to declare a state of emergency "[w]hen a privately-owned railroad system, its facility or equipment is damaged as a result of a natural disaster ...." General Statutes § 13b–32 sets forth the general transportation policy of the state favoring "[t]he development and maintenance of a modern, efficient and adequate system of motor and rail facilities ...." General Statutes § 13b–38 allows the commissioner to make loans to transit districts "to help the transit district to plan, research, construct, reconstruct, subsidize, operate or maintain transit systems, including property, equipment and facilities ...." General Statutes § 13b–101 (3) (B) exempts from regulation certain livery services to and from "a location or facility which is not open for business on a daily basis throughout the year ...." General Statutes § 13b–283 (e) empowers the commissioner to order any utility company to "readjust, relocate or remove its facility ...." In each of these instances, the use of the word "facility" evokes a tangible asset used in transportation systems, and it would be absurd to apply these statutes to include an intangible operating right. It would, after all, be nonsensical for the statutes to call for the construction or relocation of an operating right or to refer to a certificate being open for business. When, as in the present case, a word is used multiple times in a statutory scheme, we presume that the legislature intended each use of the word to have a common meaning. See, e.g., In re Jusstice W ., 308 Conn. 652, 664–65, 65 A.3d 487 (2012). Consequently, even if the definition of "facilities," standing alone, could encompass the certificates at issue, construing that term in context calls for a more restricted meaning. Therefore, reading the term "facilities" in context, as it is used in § 13b–36 (a) and other provisions in title 13b of the General Statutes, convinces us that the legislature did not intend for the term to refer to intangible operating rights reflected in the certificates at issue.
Certain provisions in title 13b of the General Statutes refer to one form of an intangible facility—a credit facility. See, e.g., General Statutes § 13b–79r (d) (4). But when the provisions of title 13b refer to a credit facility, they do so by pairing the words "credit" and "facility" rather than using "facility" alone. See, e.g., General Statutes § 13b–79r (d) (4). This indicates that, when the legislature intended to refer to an intangible facility, it did so expressly.
The dissent would apply a much broader meaning of the term "facilities," relying in significant part on a decision from the Missouri Supreme Court; see Mashak v. Poelker, 367 S.W.2d 625 (Mo. 1963) ; giving a broader meaning to the term "facilities." Significantly, however, that case has little bearing on our decision because it did not involve a delegation of the takings power, and adopting a broad interpretation of the meaning of "facilities" in the face of a more limited interpretation would violate the well established principle that we must strictly construe any delegation of the takings power. Pequonnock Yacht Club, Inc. v. Bridgeport, supra, 259 Conn. at 601, 790 A.2d 1178.
Indeed, a related statutory scheme demonstrates that, when the legislature intended for a delegation of takings power to allow for the acquisition of a bus company's operating rights, the legislature granted that power explicitly. Like the commissioner, transit districts have power to regulate and provide bus service. Like the commissioner, transit districts also have been granted certain eminent domain powers. Specifically, General Statutes § 7–273e (a) empowers a transit district to use eminent domain to "acquire all or a portion of the property and franchises of any company or companies operating a transit service in the district ...." (Emphasis added.) Unlike the term "facilities," the meaning of the term "franchise" expressly includes a government conferred operating right. See Webster's Third New International Dictionary, supra, p. 902 (defining "franchise" as "a right or privilege conferred by grant from a sovereign or a government and vested in an individual or a group" and, more specifically, as "a right to do business conferred by a government"). No similarly clear language authorizing the taking of a company's operating rights appears in the statutes governing the commissioner's eminent domain powers, further indicating that the legislature did not intend for his takings power to extend to the certificates at issue. See, e.g., State v. B.B. , 300 Conn. 748, 759, 17 A.3d 30 (2011) ("[when] a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject ... is significant to show that a different intention existed" [internal quotation marks omitted] ).
C
The commissioner argues, however, that, even if the power to condemn the certificates is not explicit in the statute, it is implicit in his express power to take any land, buildings, equipment or facilities of a bus company, and in his incidental powers to improve transportation systems in this state. See General Statutes § 13b–23. According to the commissioner, if he can take all of the bus company's tangible assets, then, it follows, he also may condemn their operating rights. We disagree.A delegation of eminent domain power must be clearly given and strictly construed; see, e.g., Northeast ern Gas Transmission Co. v. Collins , supra, 138 Conn. at 592, 87 A.2d 139. A clear delegation is not expressly granted or clearly implied either in the specific grant of eminent domain power in § 13b–36 (a) or in the commissioner's incidental powers in § 13b–23. Even though we conclude that the commissioner does not have authority to condemn the certificates, his inability to condemn the certificates at issue does not render meaningless his takings power as applied to bus companies. He retains the power to suspend or revoke certificates for cause; see General Statutes § 13b–80 ; and his takings power supplement his power to suspend or revoke the certificates. If the commissioner should need to revoke a bus company's certificate for poor performance and choose to have the state or another company operate over certain bus routes, § 13b–36 (a) also permits him to take the bus company's tangible assets for use in continuing to provide bus service, albeit with a different operator. Moreover, it is not absurd to conclude that the legislature gave the commissioner the power to take tangible items needed for a transportation system but not a bus company's operating rights given that, at the time the legislature enacted § 13b–36 (a), the commissioner did not have the power to regulate bus companies or their certificates. When the legislature enacted § 13b–36 (a) in 1969; see Public Acts 1969, No. 768, § 30; the power to issue certificates of public convenience and necessity to bus operators was then held by the DPUC's predecessor agency, the Public Utilities Commission. See General Statutes (Supp. 1969) § 16–309; General Statutes (Rev. to 1966) § 16–312a. Although the legislature allowed the commissioner to be heard at hearings concerning these certificates, it did not grant the commissioner power to issue, suspend, or revoke them. See General Statutes (Supp. 1969) § 13b–37. Moreover, when the legislature enacted § 13b–36 (a), the commissioner also had no power to regulate bus service, such as by setting fares, routes or schedules. That power was held instead by the Public Utilities Commission and the transit districts. See General Statutes (Rev. to 1966) § 7–273d ; General Statutes (Supp. 1969) § 16–309; General Statutes (Rev. to 1966) § 16–312a. Given that the commissioner had no power to regulate either the certificates or the services provided by bus companies when § 13b–36 (a) was enacted, it would not be absurd for the legislature to allow the commissioner to take tangible items necessary to improve transportation systems but not to condemn rights that he was not otherwise expressly permitted to grant or regulate. When the power to issue certificates and regulate bus service was transferred to the commissioner in 1979; see P.A. 79–610, § 9; the legislature updated many of the statutes pertaining to the regulation of bus service to reflect the commissioner's new role but, significantly, did not amend § 13b–36 (a). Although transit districts have been expressly given the power to take operating rights; see General Statutes § 7–273e ; no such specific authority has been given to the commissioner after the legislature granted him oversight over bus service. The legislature may ultimately deem it good policy for the commissioner to have the power to condemn certificates, but we conclude that the legislature has not yet granted that power to the commissioner. We therefore conclude that the trial court improperly granted the commissioner's motion for summary judgment and that it improperly denied the plaintiffs' motion. This conclusion requires us to consider the appropriate remedy. In their complaint, the plaintiffs sought an injunction from the trial court preventing the commissioner from (1) condemning the certificates, and (2) operating any buses over the plaintiffs' designated routes. In their arguments to this court, the plaintiffs have argued that such relief is proper and necessary to protect their rights in their certificates. Nevertheless, the issue of whether an injunction is necessary in addition to a judgment, and the precise parameters of any injunction, have not been considered by the trial court. In addition, the plaintiffs' request for an injunction barring the commissioner from operating any buses over any of their designated routes may impact the separate, pending litigation concerning the extent of the plaintiffs' operating rights under their certificates, including whether the plaintiffs' rights over those routes are exclusive. That dispute is not before us in the present appeal. Accordingly, we conclude that a decision of whether any injunctive relief is necessary, and the parameters of any injunctive relief, if granted, is a decision that must be made in the first instance by the trial court on remand.
The commissioner did not cite § 13b–23 as authority for the condemnation in his notices of condemnation issued to the plaintiffs. We will nevertheless briefly address the commissioner's arguments based on this statute because the plaintiffs have not objected to the commissioner's arguments concerning this provision, and, in any event, those arguments are unavailing.
The commissioner has also claimed that § 13b–34 (c) also empowers him to condemn the certificates, but we disagree. That provision does not clearly confer eminent domain power but, instead, appears to empower the commissioner to purchase or dispose of property. Notably, that provision does not expressly refer to the commissioner's power to "take" property, as in § 13b–36 (a) ; nor does it prescribe the procedures for instituting a taking, as § 13b–36 (a) does. If § 13b–34 (c) authorizes a taking, as the commissioner claims, we would expect to see procedures for exercising that power, as such procedures would be required to afford a property owner due process of law.
The judgments are reversed and the cases are remanded with direction to deny the commissioner's motion for summary judgment, to grant the plaintiffs' motion for summary judgment on the condemnation issue and to render judgment for the plaintiffs on that issue, and to remand the case for further proceedings to determine whether any injunctive relief is necessary and the parameters of any such relief, if granted.
In this opinion PALMER, EVELEIGH and VERTEFEUILLE, Js., concurred.
ROBINSON, J., with whom McDONALD, J., joins, dissenting
I respectfully disagree with the majority's conclusion that the power of the defendant, the Commissioner of Transportation (commissioner), under General Statutes § 13b–36 (a) to take "facilities" via the power of eminent domain does not extend to certificates of public convenience and necessity issued pursuant to General Statutes § 13b–80. I conclude that § 13b–36 (a) allows the commissioner to use the power of eminent domain to take these certificates that grant a bus company, such as the plaintiffs in the present cases, the right to operate a given route on particular roadways. In my view, the majority's reading of § 13b– 36 (a) to the contrary is inconsistent with the statute's plain language, and interferes with the commissioner's charge to promote mass transportation services under General Statutes §§ 13b–4 and 13b–32. Because I would affirm the judgments of the trial court granting the commissioner's motion for summary judgment in these cases, I respectfully dissent.
General Statutes § 13b–36 (a) 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."
General Statutes § 13b–80 provides in relevant part: "No person, association, limited liability company or corporation shall operate a motor bus without having obtained a certificate from the Department of Transportation or from the Federal Highway Administration pursuant to the Bus Regulatory Reform Act of 1982, P.L. 97–261, specifying the route and certifying that public convenience and necessity require the operation of a motor bus or motor buses over such route .... The department may amend or, for sufficient cause shown, may suspend or revoke any such certificate. The department may impose a civil penalty on any person or any officer of any association, limited liability company or corporation who violates any provision of any regulation adopted under section 13b–86 with respect to routes, fares, speed, schedules, continuity of service or the convenience and safety of passengers and the public, in an amount not to exceed one hundred dollars per day for each violation .... Any certificate issued pursuant to this section by the Division of Public Utility Control within the Department of Business Regulation prior to October 1, 1979, shall remain valid unless suspended or revoked by the Department of Transportation."
The plaintiffs in the civil actions that were consolidated and gave rise to this appeal are DATTCO, Inc., Collins Bus Service, Inc., Nason Partners, LLC, and The New Britain Transportation Company.
I recognize that the question of whether operating rights granted by certificates issued pursuant to § 13b–80 are exclusive in nature is currently being litigated in a separate, consolidated civil action pending in the judicial district of New Britain; see DATTCO, Inc. v. Dept. of Transportation, Superior Court, judicial district of New Britain, Docket No. CV–10–6007261–S, 2012 WL 2853566 (June 8, 2012) (54 Conn. L. Rptr. 139 ); which was filed prior to the actions underlying this appeal. By way of background, I note that, in that action, the trial court, Hon. George Levine, judge trial referee, concluded that the operating right conferred by § 13b–80 is exclusive, and continued a previously granted temporary injunction precluding the commissioner from entering into contracts that would permit other bus companies to operate over those routes, portions of which were to be served by CT Fastrak service created in conjunction with the Hartford–New Britain Busway. Id. The parties subsequently entered into a stipulation in that case that permitted the commissioner to execute contracts for the provision of bus service on portions of those routes, and required the commissioner to enter into contracts with the plaintiff DATTCO, Inc. for certain of those routes, thus allowing the commencement of CT Fastrak service. I do not consider in this dissenting opinion whether Judge Levine properly concluded that the operating rights granted by the certificates, issued pursuant to § 13b–80, are exclusive in nature.
General Statutes § 13b–4 provides in relevant part: "The commissioner shall have the following general powers, duties and responsibilities:
"(1) To coordinate and develop comprehensive, integrated transportation policy and planning to include a long-range master plan of transportation for the state;
"(2) To coordinate and assist in the development and operation of a modern, safe, efficient and energy-conserving system of highway, mass transit, marine and aviation facilities and services;
"(3) To promote the coordinated and efficient use of all available and future modes of transportation;
"(4) To study commuter and urban travel and in cooperation with federal, regional and local agencies and persons to formulate and implement plans and programs to improve such travel;
"(5) To study means of providing facilities for parking motor vehicles so as to encourage travel by the combination of motor vehicle and other modes of transportation and in cooperation with federal, regional and local agencies and persons to formulate and implement plans and programs for this purpose ...."
General Statutes § 13b–32 provides: "Improvement in the transportation of people and goods within, to and from the state by rail, motor carrier or other mode of mass transportation on land is essential for the welfare of the citizens of the state and for the development of its resources, commerce and industry. The development and maintenance of a modern, efficient and adequate system of motor and rail facilities and services is required. The department shall assist in the development and improvement of such facilities and services and shall promote new and better means of mass transportation by land."
I agree with the majority's recitation of the underlying facts and procedural history. I also agree with the majority with respect to certain general principles that inform our review, in particular, that, under Gray Line Bus Co. v. Greater Bridgeport Transit District , 188 Conn. 417, 423, 449 A.2d 1036 (1982), the "plaintiffs each hold a property right in their own certificates that cannot be taken by the state without due process of law," namely, revocation or suspension in accordance with § 13b–80, or condemnation under the eminent domain power if delegated to the commissioner by the legislature. See, e.g., Northeastern Gas Transmission Co. v. Collins , 138 Conn. 582, 586–87, 87 A.2d 139 (1952). Moreover, "when [the legislature] delegates to another the power to exercise the right of eminent domain, the extent of the power is limited by the express terms or clear implications of the statute authorizing its exercise." Id., at 592, 87 A.2d 139. Finally, the question before us, namely, whether the commissioner's exercise of the condemnation power was indeed legislatively authorized, presents us with an issue of statutory construction, over which our review is plenary. See, e.g., Kelo v. New London , 268 Conn. 1, 13, 843 A.2d 500 (2004), aff'd, 545 U.S. 469, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005).
"When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature .... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.... In seeking to determine that meaning, General Statutes § 1–2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered .... When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter .... The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation." (Internal quotation marks omitted.) Gonzalez v. O & G Industries, Inc. , 322 Conn. 291, 302–303, 140 A.3d 950 (2016).
I begin with the text of § 13b–36 (a), which 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.) It is undisputed that the certificates at issue in this case must be "facilities" to be subject to condemnation under § 13b–36 (a). Because § 13b–36 (a) does not define the term "facilities," in accordance with General Statutes § 1–1 (a), we look to the term's "commonly approved usage," as ascertained by reference "to the common understanding of the term as expressed in a dictionary." (Internal quotation marks omitted.) State v. Agron , 323 Conn. 629, 635, 148 A.3d 1052 (2016). The dictionary definition of "facilities" is broad and expansive. For example, Merriam–Webster's Collegiate Dictionary (11th Ed. 2003) defines "facility," in relevant part, in the singular as "something that makes an action, operation, or course of conduct easier" or "something (as a hospital) that is built, installed, or established to serve a particular purpose." Another widely used dictionary defines the word "facility" even more broadly as "[s]omething that facilitates an action or process. Often used in the plural." American Heritage College Dictionary (4th Ed. 2007). Consistent with these definitions, the United States Court of Appeals for the Second Circuit has described the word "facilities ... as a widely inclusive term, embracing anything which aids or makes easier the performance of the activities involved in the business of a person or corporation." (Emphasis added;
Other definitions of "facility" in Merriam–Webster's Collegiate Dictionary, supra, are: (1) "the quality of being easily performed"; (2) "ease in performance: APTITUDE"; and (3) "readiness of compliance ...."
I acknowledge the unpublished decision of the Tennessee Court of Appeals in Lynnwood Utility Co. v. Franklin, Docket No. 89–360–II, 1990 WL 38358, *3–4 (Tenn. App. April 6, 1990), cited by the majority, which held that a sewer utility's "Certificate of Convenience and Necessity" was not a " ‘facility’ " for purposes of allocating statutorily mandated damages when a municipality elected to provide water services in an area covered by that certificate, but where the utility had never provided services and had no physical plant. The court held that "the term ‘facilities' as used in [the utility statute] means physical facilities, not a right to construct physical facilities and not a right to serve an area." Id., at *3. In my view, Lynnwood Utility Co. is distinguishable from the statutory scheme at issue in this case. First, unlike § 13b–36 (a), the Tennessee statute at issue in Lynnwood Utility Co. specifically required the valuation of the " ‘facilities' " by the " ‘replacement cost’ " method, which necessarily contemplates a physical asset. Id., at *4. In contrast, a public utility's operating rights, such as a certificate issued pursuant to § 13b–80, would be valued as a " ‘going concern,’ " a term that "has sometimes been used broadly to encompass all those factors which contribute to the value of the enterprise apart from its physical assets." Gray Line Bus Co. v. Greater Bridgeport Transit District, supra, 188 Conn. at 422, 449 A.2d 1036 ; see also id., at 428–29, 449 A.2d 1036 (discussing distinction between compensation for taking of franchise itself, and compensation for effects of taking franchise).
With respect to other cases, I agree with the majority that the Mississippi Supreme Court's opinion in Mississippi Power & Light Co. v. Clarksdale, 288 So.2d 9 (Miss. 1973), does not directly shed light on the question before us, namely, whether the ordinary meaning of the term "facilities" encompasses exclusive operating rights. The statute at issue in the Mississippi case also is distinguishable because it only uses the term "facilities," without accompaniment by other terms such as "land" or "equipment." Id., at 11. Nevertheless, Mississippi Power & Light Co. does not altogether lack persuasive value, insofar as the Mississippi Supreme Court held that, to be constitutional, a statute authorizing the use of eminent domain to take "facilities" had to be construed to include both a utility's physical facilities and its operating rights, given the value of the franchise and the fact that, without taking those rights, the city could not lawfully use the utility's physical plant to provide electrical services. Id., at 11–12 ; see also id., 12 ("[t]he condemnation of [the utility's] physical property would destroy its franchise rights"). In my view, Mississippi Power & Light Co. suggests that a utility's operating rights are a significant component of its value as a concern, and that an expansive reading of eminent domain statutes in a manner that acknowledges that value is appropriate. Further, Mississippi Power & Light Co. suggests the reasonableness of a statutory interpretation that deems the word "facilities" to include operating rights.
internal quotation marks omitted.) Hartford Electric Light Co. v. Federal Power Commission , 131 F.2d 953, 961 (2d Cir. 1942), cert. denied, 319 U.S. 741, 63 S.Ct. 1028, 87 L.Ed. 1698 (1943) ; see also id. (power company's "corporate organization, contracts, accounts, memoranda, papers and other records, in so far as they are utilized in connection with such sales," were "facilities" in interstate commerce subjecting it to jurisdiction of Federal Power Commission). Thus, it is significant to me that nothing in the common definition of the word "facility" limits its use to "tangible assets," as compared to what the majority deems "intangible operating rights."
The breadth of the term "facilities" is well demonstrated by the Missouri Supreme Court's decision in Mashak v. Poelker , 367 S.W.2d 625, 628 (Mo. 1963), which considered whether a local juvenile court was legislatively authorized to hire a court administrator pursuant to a state statute providing that " ‘[a] county may establish medical, psychiatric and other facilities , upon request of the juvenile court, to provide proper services for the court in the diagnosis and treatment of children coming before it and these facilities shall be under the administration and control of the juvenile court.’ " (Emphasis in original.) The court held that the phrase "other facilities," as used in the statute, authorized the hiring of the court administrator; it rejected the plaintiff's argument that "the word as used in the context of the statute does not mean a person but instead denotes inanimate rather than human agencies." Id., at 628. In support of this conclusion, the court cited the broad dictionary definition of the term "facilities," a statute authorizing a liberal construction of the juvenile court act to promote the welfare of children, and case law including State ex rel. Knight v. Cave , 20 Mont. 468, 475–76, 52 P. 200 (1898), which held that teachers and their services are "school facilities" for purposes of a tax statute. See Mashak v. Poelker , supra, at629–31. Tellingly, the Missouri Supreme Court rejected the plaintiff's argument founded on ejusdem generis, "that the general words must be restricted to the particular classes or things enumerated," to use "medical" or "psychiatric" to restrict the meaning of "other facilities," observing that doctrine is "an aid to construction and not a positive rule of law and never overrides an intention that is clear." Id., at 630.
Indeed, the majority in this case follows a variant of ejusdem generis, namely, the principle of noscitur a sociis, or that "the meaning of a particular word or phrase in a statute is ascertained by reference to those words or phrases with which it is associated." Staples v. Palten, 214 Conn. 195, 199, 571 A.2d 97 (1990). The majority applies this principle to observe that § 13b–36 (a)"groups the term ‘facilities' with three other nouns describing what the commissioner may condemn, namely, ‘land, buildings, [and] equipment,’ and each refers to tangible objects." In my view, the Missouri Supreme Court's decision in Mashak v. Poelker, supra, 367 S.W.2d at 630, more aptly demonstrates the breadth of the term "facilities," even when used in an apparently more restrictive context.
Given the broad dictionary definition and common usage of the term "facilities," I conclude that the certificates are "facilities" within the meaning of § 13b–36 (a) because they aid or facilitate the operation of the plaintiffs' businesses by granting them rights to operate their buses on the designated routes. Moreover, although it is a "well established proposition that [t]he authority to condemn [is to] be strictly construed in favor of the owner of the property taken and against the condemnor," it similarly is axiomatic that "[t]he statute ... should be enforced in such a way as to effectuate the purpose for which it was enacted." (Internal quotation marks omitted.) Kelo v. New London , supra, 268 Conn. at 24, 843 A.2d 500. Given the breadth of the definition of "facilities," an application of the logical principle known as Occam's razor supports a reading of § 13b–36 (a) that, by allowing the condemnation of the certificates, aids the commissioner in executing his statutory mandate to promote and coordinate public transportation in the state, including ventures such as the Hartford–New Britain Busway. See General Statutes § 13b–4 (1), (2), (3) and (4) ; see also General Statutes § 13b–11b (a) (3) (requiring commissioner to develop and report strategy for, inter alia, "increas[ing] the use of public transportation and ride sharing so that at least ten per cent of all trips between home and places of employment occur in vehicles occupied by more than one person by the year 2000"). To read § 13b–36 (a) otherwise would be to foster the impermissibly bizarre result of handcuffing the commissioner by allowing him to take a bus company's fleet or buildings, but not its operating rights over a particular route for purposes of consolidation or combination of routes, including for the purpose, as in this case, of lowering the state's transit subsidy expenses by allowing for those new routes to be competitively bid on the open market.
I disagree with the majority's view of the certificates as falling beyond the scope of this very broad definition "because they do not merely ‘promote the ease’ of the plaintiffs' business but, in fact, authorize it in the first place." Specifically, I disagree with the factual premise of this position. Although the certificates are undoubtedly of great economic value to the plaintiffs' businesses, they do not authorize the plaintiffs' corporate existence as bus companies, and nowhere do the plaintiffs claim that the loss of the certificates will itself put them out of business as a matter of law.
"While not specifically treated as a canon of statutory interpretation, Occam's razor is apropos here." American Civil Liberties Union v. Clapper, 804 F.3d 617, 624 n.2 (2d Cir. 2015). "[T]he principle of Occam's razor—that the simplest of competing theories should be preferred over more complex and subtle ones—is as valid juridically as it is scientifically." (Internal quotation marks omitted.) Brodie v. Workers' Compensation Appeals Board, 40 Cal.4th 1313, 1328 n.10, 156 P.3d 1100, 57 Cal.Rptr.3d 644 (2007) ; see also Johnson v. Commonwealth, 412 S.W.3d 157, 168 n.4 (Ky. 2013) (describing fourteenth century origin of Occam's razor, as logical " ‘law of parsimony,’ " in William of Ockham's " ‘Commentary on the Sentences' ").
I acknowledge the majority's reliance on the revocation provisions of § 13b–80 in support of its contention that the commissioner's "inability to condemn the certificates at issue does not render meaningless his takings power as applied to bus companies. He retains the power to suspend or revoke certificates for cause; see General Statutes § 13b–80 ; and his takings power supplement his power to suspend or revoke the certificates. If the commissioner should need to revoke a bus company's certificate for poor performance and choose to have the state or another company operate over certain bus routes, § 13b–36 (a) also permits him to take the bus company's tangible assets for use in continuing to provide bus service, albeit with a different operator." I believe the majority's reliance on the revocation provisions of § 13b–80 is inapposite because, under that section, no compensation would be due should there be a substantiated finding of, for example, poor bus service that would justify revocation for "cause." Here, the property right is being taken by eminent domain for the public use, for which no such cause is necessary—only the payment of just compensation for the taking.
To this end, the statutory scheme demonstrates the legislature's intent that the commissioner's powers be expansive, insofar as General Statutes § 13b–23 affords the commissioner "incidental" powers to supplement the "express powers" granted by statute as "necessary or proper for the effective performance of [the commissioner's] powers and duties." The incidental powers of § 13b–23 are consistent with case law permitting the exercise of eminent domain powers by "clear [implication]" from the statutes, as well as their express terms. Northeastern Gas Transmission Co. v. Collins , supra, 138 Conn. at 592, 87 A.2d 139. Accordingly, I conclude that § 13b–36 (a) authorized the commissioner's exercise of the power of eminent domain over the plaintiffs' certificates.
General Statutes § 13b–23 provides: "The commissioner shall have such additional powers, incidental to the express powers granted under this chapter and title 13a, as may be necessary or proper for the effective performance of his powers and duties."
I agree with the majority that § 13b–23 does not, by itself, provide the requisite authority, via "express terms or clear implications"; Northeastern Gas Transmission Co. v. Collins, supra, 138 Conn. at 592, 87 A.2d 139 ; to sustain the taking of the plaintiffs' certificates. Nevertheless, I believe that the legislature's grant of incidental powers to the commissioner in § 13b–23 counsels us to adopt an interpretation of the takings power under § 13b–36 (a) that is as broad as the statutory text will allow.
The majority, however, views the statutory scheme differently, notwithstanding the commissioner's charge with respect to the promotion of mass transit and the expansive powers by which he can accomplish that legislatively declared public policy goal. I emphasize my specific disagreement with the majority's reliance on the statutory scheme governing transit districts; see General Statutes § 7–273b et seq. ; and specifically General Statutes § 7–273e (a), which gives transit districts the power of eminent domain over bus companies' "property and franchises ...." Particularly given that eminent domain powers may be granted to the commissioner by clear implication; see Northeastern Gas Transmission Co. v. Collins , supra, 138 Conn. at 592, 87 A.2d 139 ; I believe that the transit district statutes support a reading of § 13b–36 (a) that gives the commissioner the right to take the certificates.I begin with the majority's textual arguments in connection with the transit district statutes, which the majority uses, in conjunction with the maxim that "[w]here a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject ... is significant to show that a different intention existed"; (internal quotation marks omitted) State v. B.B. , 300 Conn. 748, 759, 17 A.3d 30 (2011) ; in support of the proposition that "when the legislature intended for a delegation of takings power to allow for the acquisition of a bus company's operating rights, the legislature granted that power explicitly." Although this argument, at first glance, seems compelling, a closer examination of the statutes cited by the majority reveals that this principle is inapplicable. In particular, § 7–273e (a), relied on by the majority, expressly grants transit districts the power to "acquire all or a portion of the property and franchises of any company or companies operating a transit service in the district ...." (Emphasis added.) In my view, the comparison urged by the majority fails because the legislature did not use the term "facilities" in addition to the word "franchises" in its grant of the eminent domain power in § 7–273e (a), instead using the term "property" therein to encompass both real and personal property. In contrast, I read § 13b–36 (a) to refer illustratively to tangible real and personal property by using the terms "land, buildings, [and] equipment" prior to employing the catch-all term "facilities" to describe all other types of property subject to acquisition. Put differently, had the legislature used the word "facilities" in addition to "franchises" in § 7–273e (a), that statute would be far more persuasive evidence that the legislature did not intend the term "facilities" as used in § 13b–36 (a) to encompass operating rights. Moreover, allowing transit districts, but not the commissioner, to take operating franchises runs afoul of the precept of "legislative consistency," namely, that the "legislature is always presumed to have created a harmonious and consistent body of law," thus requiring us to look "to the broader statutory scheme to ensure the coherency of our construction." (Internal quotation marks omitted.) Sokaitis v. Bakaysa , 293 Conn. 17, 23, 975 A.2d 51 (2009). This principle of legislative coherence remains paramount, despite the fact that § 13b–36 (a) and the transit district statutes were, as the majority observes, enacted at different times. See Commission on Human Rights & Opportunities v. Board of Education , 270 Conn. 665, 688 n.22, 855 A.2d 212 (2004). Examination of the statutory scheme reveals that it would be particularly incoherent to grant transit districts greater power than is afforded the commissioner because the commissioner has statewide responsibility over transportation matters and transit districts are, as quasi-municipal entities, creatures of the state with only those limited powers that are granted by their enabling statutes, General Statutes § 7–273b et seq. See, e.g., Wright v. Woodridge Lake Sewer District , 218 Conn. 144, 148, 588 A.2d 176 (1991) ; see also In re Westport Transit District , 165 B.R. 93, 97–98 (Bankr. D. Conn. 1994) ("the transit-district enabling statutes cannot be interpreted as generally authorizing [the transit district] to file a [bankruptcy] petition"). Indeed, the statutory scheme expressly contemplates that the transit districts coordinate transit systems in their boundaries in the place of the commissioner, who generally has the authority to modify or overrule the transit districts' decisions should he determine, in an appeal, that they "would affect state-wide transportation policy adversely ...." General Statutes § 7–273d. Most tellingly, the statutory scheme governing transit districts specifically contemplates direct oversight by the commissioner over transit districts' taking of operating franchises, with § 7–273e (b) expressly setting forth a detailed procedure by which the commissioner may determine the "[s]uitability" of such a taking. In my view, it would defy the principle of legislative coherency to grant the commissioner direct oversight over transit districts, including in the exercise of their eminent domain powers over operating franchises, while not affording the commissioner those same eminent domain powers in the first instance.
General Statutes § 7–273e (a) provides in relevant part: "If the directors deem it necessary to preserve or to develop a transit system, the district may establish, operate and maintain a transit system within the district or between the district and any municipality contiguous with its service area with which it contracts to furnish transit service, and for this purpose may establish a new system, or may acquire all or a portion of the property and franchises of any company or companies operating a transit service in the district, including that portion of the property and franchises used for operation within the district and also that portion of the property and franchises which is used outside the district but which is integrated into the service provided in the district...." (Emphasis added.)
I similarly disagree with the majority's reliance on the use of the term "facilities" in General Statutes § 13b–56, which governs harbor improvement projects, for the proposition that the legislature understands the term "facilities" only to embrace tangible items such as a bridge. That statute is distinguishable because it uses the term "facilities and structures" to expand a list of authorized harbor improvement projects that include "berthing areas, channels to berthing areas, sea walls, piers, docks, navigation aids, bridges and other related facilities and structures ...." General Statutes § 13b–56.
General Statutes § 7–273d provides in relevant part: "Upon written notice to the Department of Transportation, to the chief executive officer of a private transit system, and to the elected chief executive officer of each municipality composing the district, the district, by its board of directors, may assume all powers of the Department of Transportation to regulate and supervise the operation of any such transit system within the district, provided that such transit system would be subject to the supervision of the department except for this section. Upon assuming such supervision the district, by its board of directors, shall establish passenger fares and any other rates to be charged and shall establish service standards, may order abandonment of uneconomic routes and shall exercise all powers of regulation and supervision over such transit system as are conferred on the department by title 16, in the same manner and under the same standards as are established by said title 16. Any company, town, city, borough, corporation or person aggrieved by any order, authorization or decision of the board of directors, except an order, authorization or decision approving the taking of land, in any matter to which he or it was or ought to have been made a party, may appeal therefrom to the department within thirty days after the filing of such order, authorization or decision .... Where the department determines that the order, authorization or decision of the transit district would affect state-wide transportation policy adversely, such order, authorization or decision may be modified or overruled ...."
General Statutes § 7–273e (b) provides: "In order to insure the continuance of adequate transit services when it appears that the holder of the franchise is or will be incapable of continuing to offer satisfactory service to meet present or future public passenger transportation requirements and it is improbable that such franchise will be sought by any other private concern, the Department of Transportation, on its own initiative, may or, on request of the transit district or the legislative body of one or more municipalities in the area served, shall fix a time and place for a hearing as to whether such franchise is suitable for acquisition by a transit district. Said department shall give written notice of such hearing to the board of selectmen of each town, or in the case of cities and boroughs to the chief executive of each, within the area not less than fourteen days prior to such hearing, and shall cause to be published twice, not more than fourteen nor less than seven days prior to such hearing, notice of such hearing in a newspaper or newspapers having a substantial circulation in each municipality within such area. Suitability of a franchise for acquisition by a transit district shall be determined from the following considerations: (1) That public convenience and necessity require the continuance of transit service within the area, (2) that the present franchise holder is or will be incapable of continuing to offer satisfactory service, (3) that it is improbable that such franchise will be sought by a private concern and (4) that continuance of transit service may require the operation of such service by a transit district. After a public hearing thereon and consideration of the above-mentioned factors, the department may declare such franchise suitable for acquisition by a transit district, provided such declaration shall not affect the authority of the municipalities in the area to establish such a district. Ability to offer satisfactory service shall be based upon the financial stability of the franchise holder as determined from past, current and projected net income and from an estimate of financial ability to meet future public passenger transportation requirements in the area. The department may make periodic inspections of transit system franchise holders to determine the financial stability of each and for this purpose may examine the books, accounts and other pertinent documents of such franchise holders and shall have the power to compel the attendance of witnesses and the production of books, accounts and other pertinent documents by the issuance of a subpoena. With the written consent of the chief executive officer of each municipality within the area served, the district and the transit system franchise holder may execute an agreement to waive the holding of a hearing by the department, as described in this subsection and may exercise its power to acquire real property and interests and rights in real property in accordance with subsection (c) of this section." See also General Statutes § 7–273e (c) (setting forth procedure for taking of real property by transit district "subject to the prior approval of the legislative body or bodies of the municipality or municipalities in which the real property is located").
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Given the plain and unambiguous language of § 13b–36 (a), when viewed in conjunction with the commissioner's expansive charge to implement and promote mass transit, I conclude that the commissioner's power to take "facilities" extends to certificates issued pursuant to § 13b–80. I, therefore, would affirm the judgments of the trial court granting the commissioner's motion for summary judgment.
Accordingly, I respectfully dissent.