Dattco, Inc. v. Commissioner of Transportation ( 2016 )

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DATTCO, INC. v. COMMISSIONER OF TRANSPORTATION—DISSENT
ROBINSON, J., with whom McDONALD, J., joins, dis-
senting. I respectfully disagree with the majority’s con-
clusion that the power of the defendant, the
Commissioner of Transportation (commissioner),
under General Statutes § 13b-36 (a)1 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-80.2 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,3 the right to operate a given route on particular
roadways.4 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-45 and 13b-32.6 Because I would
affirm the judgments of the trial court granting the
commissioner’s motion for summary judgment in these
cases, I respectfully dissent.
I agree with the majority’s recitation of the underlying
facts and procedural history. I also agree with the major-
ity 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 legisla-
ture. 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 exer-
cise.’’ Id., 592. Finally, the question before us, namely,
whether the commissioner’s exercise of the condemna-
tion 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 objec-
tive 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 interpre-
tive guidance to the legislative history and circum-
stances surrounding its enactment, to the legislative
policy it was designed to implement, and to its relation-
ship 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 reason-
able interpretation.’’ (Internal quotation marks omit-
ted.) 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, build-
ings, equipment or facilities which the commissioner
finds necessary for the operation or improvement of
transportation services. The determination by the com-
missioner 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, A.3d (2016). The dictionary defini-
tion 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 particu-
lar purpose.’’7 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 inclu-
sive term, embracing anything which aids or makes
easier the performance of the activities involved in the
business of a person or corporation.’’8 (Emphasis added;
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 com-
pany’s ‘‘corporate organization, contracts, accounts,
memoranda, papers and other records, in so far as they
are utilized in connection with such sales,’’ were ‘‘facili-
ties’’ 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 demon-
strated 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, author-
ized 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 agen-
cies.’’ Id., 628. In support of this conclusion, the court
cited the broad dictionary definition of the term ‘‘facili-
ties,’’ 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,
629–31. Tellingly, the Missouri Supreme Court rejected
the plaintiff’s argument founded on ejusdem generis,
‘‘that the general words must be restricted to the partic-
ular classes or things enumerated,’’ to use ‘‘medical’’
or ‘‘psychiatric’’ to restrict the meaning of ‘‘other facili-
ties,’’ observing that doctrine is ‘‘an aid to construction
and not a positive rule of law and never overrides an
intention that is clear.’’9 Id., 630.
Given the broad dictionary definition and common
usage of the term ‘‘facilities,’’ I conclude that the certifi-
cates 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.10 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.’’ (Inter-
nal quotation marks omitted.) Kelo v. New London,
supra, 268 Conn. 24. Given the breadth of the definition
of ‘‘facilities,’’ an application of the logical principle
known as Occam’s razor11 supports a reading of § 13b-
36 (a) that, by allowing the condemnation of the certifi-
cates, aids the commissioner in executing his statutory
mandate to promote and coordinate public transporta-
tion in the state, including ventures such as the Hart-
ford-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.12
To this end, the statutory scheme demonstrates the
legislature’s intent that the commissioner’s powers be
expansive, insofar as General Statutes § 13b-2313 affords
the commissioner ‘‘incidental’’ powers to supplement
the ‘‘express powers’’ granted by statute as ‘‘necessary
or proper for the effective performance of [the commis-
sioner’s] powers and duties.’’14 The incidental powers
of § 13b-23 are consistent with case law permitting the
exercise of eminent domain powers by ‘‘clear [implica-
tion]’’ from the statutes, as well as their express terms.
Northeastern Gas Transmission Co. v. Collins, supra,138 Conn. 592. Accordingly, I conclude that § 13b-36 (a)
authorized the commissioner’s exercise of the power of
eminent domain over the plaintiffs’ certificates.
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 Gen-
eral Statutes § 7-273e (a),15 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 commis-
sioner by clear implication; see Northeastern Gas
Transmission Co. v. Collins, supra, 138 Conn. 592; I
believe that the transit district statutes support a read-
ing of § 13b-36 (a) that gives the commissioner the right
to take the certificates.
I begin with the majority’s textual arguments in con-
nection with the transit district statutes, which the
majority uses, in conjunction with the maxim that
‘‘[w]here a statute, with reference to one subject con-
tains 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 dis-
tricts 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 ‘‘fran-
chises’’ 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, build-
ings, [and] equipment’’ prior to employing the catch-all
term ‘‘facilities’’ to describe all other types of property
subject to acquisition. Put differently, had the legisla-
ture used the word ‘‘facilities’’ in addition to ‘‘fran-
chises’’ 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.16
Moreover, allowing transit districts, but not the com-
missioner, 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 coher-
ence 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 Educa-
tion, 270 Conn. 665, 688 n.22, 855 A.2d 212 (2004). Exam-
ination 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 trans-
portation matters and transit districts are, as quasi-
municipal entities, creatures of the state with only those
limited powers that are granted by their enabling stat-
utes, 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 coordi-
nate 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 . . . .’’ Gen-
eral Statutes § 7-273d.17 Most tellingly, the statutory
scheme governing transit districts specifically contem-
plates direct oversight by the commissioner over transit
districts’ taking of operating franchises, with § 7-273e
(b)18 expressly setting forth a detailed procedure by
which the commissioner may determine the ‘‘[s]uitabil-
ity’’ of such a taking. In my view, it would defy the
principle of legislative coherency to grant the commis-
sioner direct oversight over transit districts, including
in the exercise of their eminent domain powers over
operating franchises, while not affording the commis-
sioner those same eminent domain powers in the
first instance.
Given the plain and unambiguous language of § 13b-
36 (a), when viewed in conjunction with the commis-
sioner’s expansive charge to implement and promote
mass transit, I conclude that the commissioner’s power
to take ‘‘facilities’’ extends to certificates issued pursu-
ant 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.
1
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 commis-
sioner 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.’’
2
General Statutes § 13b-80 provides in relevant part: ‘‘No person, associa-
tion, 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 suffi-
cient cause shown, may suspend or revoke any such certificate. The depart-
ment may impose a civil penalty on any person or any officer of any
association, limited liability company or corporation who violates any provi-
sion 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.’’
3
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.
4
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, Supe-
rior Court, judicial district of New Britain, Docket No. CV-10-6007261-S
(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 subse-
quently entered into a stipulation in that case that permitted the commis-
sioner 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.
5
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 tran-
sit, 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 pur-
pose . . . .’’
6
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 facili-
ties and services and shall promote new and better means of mass transporta-
tion by land.’’
7
Other definitions of ‘‘facility’’ in Merriam-Webster’s Collegiate Dictionary,
supra, are: (1) ‘‘the quality of being easily performed’’; (2) ‘‘ease in perfor-
mance: APTITUDE’’; and (3) ‘‘readiness of compliance . . . .’’
8
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., *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., *4. In
contrast, a public utility’s operating rights, such as a certificate issued pursu-
ant to § 13b-80, would be valued as a ‘‘ ‘going concern,’ ’’ a term that ‘‘has
sometimes been used broadly to encompass all those factors which contrib-
ute to the value of the enterprise apart from its physical assets.’’ Gray Line
Bus Co. v. Greater Bridgeport Transit District, supra, 188 Conn. 422; see
also id., 428–29 (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 Missis-
sippi case also is distinguishable because it only uses the term ‘‘facilities,’’
without accompaniment by other terms such as ‘‘land’’ or ‘‘equipment.’’ Id.,
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., 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.
9
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 630, more aptly
demonstrates the breadth of the term ‘‘facilities,’’ even when used in an
apparently more restrictive context.
10
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 certifi-
cates will itself put them out of business as a matter of law.
11
‘‘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.’’ (Inter-
nal 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’ ’’).
12
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 compen-
sation 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.
13
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 perfor-
mance of his powers and duties.’’
14
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. 592; 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.
15
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.)
16
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 ‘‘facili-
ties’’ only to embrace tangible items such as a bridge. That statute is distin-
guishable 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.
17
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, corpora-
tion 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, authori-
zation or decision may be modified or overruled. . . .’’
18
General Statutes § 7-273e (b) provides: ‘‘In order to insure the continu-
ance 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 municipal-
ity 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 subsec-
tion (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 municipali-
ties in which the real property is located’’).