New Britain Transportation Co. v. Commissioner of Transportation

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
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
(SC 19558)
Palmer, Zarella, Eveleigh, McDonald, Robinson and Vertefeuille, Js.
Argued October 20—officially released December 27, 2016
Jeffrey J. Mirman, with whom was David A. DeBas-
sio, for the appellants (plaintiffs).
Eileen Meskill, assistant attorney general, with whom
were Charles H. Walsh, assistant attorney general, and,
on the brief, George Jepsen, attorney general, and Alan
N. Ponanski, assistant attorney general, for the appel-
lee (defendant).
Opinion
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 govern-
ment 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.1 Each plaintiff holds a certificate of
public convenience and necessity, granting it authority
to operate a bus service over a specified route. The
certificates were issued under predecessor statutes to
what is now General Statutes § 13b-80. Section 13b-80
provides that ‘‘[n]o person, association, limited liability
company or corporation shall operate a motor bus with-
out having obtained a certificate . . . specifying the
route and certifying that public convenience and neces-
sity 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 predeces-
sor and transit districts held exclusive authority to regu-
late private bus service and to issue certificates of pub-
lic 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 Gen-
eral Statutes (Rev. to 1981) § 13b-80. The transit dis-
tricts have retained their power to regulate bus service
within their respective jurisdictions. See General Stat-
utes § 7-273d. Although some of the certificates have
been amended since they were issued, neither the com-
missioner nor the Greater Hartford Transit District has
moved to suspend or revoke them.
Recently, however, the state constructed a new desig-
nated busway between New Britain and Hartford.
According to the plaintiffs, the new busway incorpo-
rates some of the routes over which the plaintiffs cur-
rently operate, and the state sought to hire new
companies to operate buses over these routes. The
plaintiffs claim that their certificates give them exclu-
sive rights to operate over the routes at issue, preclud-
ing 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 commis-
sioner from transferring the routes at issue to new oper-
ators pending the outcome of the litigation.
While that case was pending, however, the commis-
sioner condemned the certificates pursuant to the
state’s power of eminent domain, prompting the plain-
tiffs 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 pre-
venting the commissioner from carrying out the con-
demnations.
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 dis-
agreement 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 sum-
mary 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 con-
demn 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 con-
demned under the state’s eminent domain power. See
id.; see also General Statutes § 13b-80. The commis-
sioner has not attempted to suspend or revoke the cer-
tificates, so he may terminate the plaintiffs’ rights only
through condemnation. The power to condemn resides
with the legislature, but the commissioner may exercise
this power if the legislature has delegated it to him.
E.g., Northeastern Gas Transmission Co. v. Collins,
138 Conn. 582, 586–87, 87 A.2d 139 (1952). When the
legislature delegates eminent domain power, we will
enforce the grant of power consistent with the purposes
of the legislation, but we interpret the scope of the
power granted strictly, and in favor of the property
owner and against the condemner. Pequonnock Yacht
Club, Inc. v. Bridgeport, 259 Conn. 592, 601, 790 A.2d
1178 (2002). Moreover, when the legislature delegates
eminent domain power, ‘‘the extent of the power is
limited by the express terms or clear implications of
the statute authorizing its exercise.’’ Northeastern Gas
Transmission Co. v. Collins, supra, 592. There is no
question that the state holds the power to condemn
the certificates—the question before us is whether the
legislature has delegated that power to the commis-
sioner.
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 intangi-
ble operating rights like those reflected in the certifi-
cates 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. Sec-
tion 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, 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.)
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 Interna-
tional 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, machin-
ery, 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, opera-
tion, transaction, or course of conduct . . . .’’ Web-
ster’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 interpreta-
tion. He argues that it is broad enough to include any-
thing tangible or intangible attendant to the plain-
tiffs’ businesses.
We disagree that the commissioner’s preferred defini-
tion of ‘‘facilities’’ is broad enough to encompass the
certificates at issue because they do not merely ‘‘pro-
mote 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 Commis-
sion, 131 F.2d 953, 961 (2d Cir. 1942) (concluding that
power company’s ‘‘facilities’’ included company’s con-
tracts 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 provi-
sion 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 con-
cluded that the term ‘‘facility’’ does not refer to a com-
pany’s operating rights.2 Lynnwood Utility Co. v.
Franklin, Tennessee Court of Appeals, Docket No. 89-
360-II (April 6, 1990) (determining, in condemnation
case, that ‘‘[a] [c]ertificate of [c]onvenience and [n]eces-
sity is not a facility’’).
We therefore conclude that interpreting ‘‘facilities’’
to refer not just to what makes an action easier, but
also to the very authority that authorizes the action
altogether, would unduly stretch the meaning of that
term too far. This is especially true considering that we
must construe a delegation of eminent domain power
strictly and against the power of the condemner.
Pequonnock Yacht Club, Inc. v. Bridgeport, supra, 259
Conn. 601. Adopting the commissioner’s broad interpre-
tation 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., 199. 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 tangi-
ble objects other than land, buildings, and equipment
that might be used in a transportation system. More-
over, interpreting ‘‘facilities’’ to mean only tangible
items does not render it superfluous or redundant with
respect to the terms ‘‘land,’’ ‘‘buildings,’’ or ‘‘equip-
ment,’’ as the commissioner suggests. The term ‘‘facili-
ties’’ embraces numerous tangible items—other than
land, buildings, or equipment—including bridges; Gen-
eral 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 Authority, 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 any-
thing that supports a given action, as the commissioner
argues and the dissent agrees, would render superflu-
ous 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 stat-
ute] 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 commis-
sioner, 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) (referenc-
ing ‘‘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 ‘‘facili-
ties’’ in a manner that would be coherent only if ‘‘facili-
ties’’ 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 dis-
tricts ‘‘to help the transit district to plan, research, con-
struct, 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 busi-
ness on a daily basis throughout the year . . . .’’ Gen-
eral 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 pre-
sume 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).3
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 ‘‘facili-
ties’’ 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 cer-
tificates at issue.4
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 prop-
erty 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 (defin-
ing ‘‘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 com-
pany’s operating rights appears in the statutes govern-
ing 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 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]).
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 com-
pany, and in his incidental powers to improve transpor-
tation systems in this state. See General Statutes § 13b-
23.5 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.
592. 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 con-
demn the certificates, his inability to condemn the cer-
tificates 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 certifi-
cates. 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 legisla-
ture 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 predeces-
sor agency, the Public Utilities Commission. See Gen-
eral Statutes (Supp. 1969) § 16-309; General Statutes
(Rev. to 1966) § 16-312a. Although the legislature
allowed the commissioner to be heard at hearings con-
cerning these certificates, it did not grant the commis-
sioner 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 tran-
sit 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 com-
missioner had no power to regulate either the certifi-
cates 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 commis-
sioner to have the power to condemn certificates, but
we conclude that the legislature has not yet granted
that power to the commissioner.6
We therefore conclude that the trial court improperly
granted the commissioner’s motion for summary judg-
ment 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’ desig-
nated routes. In their arguments to this court, the plain-
tiffs 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 addi-
tion 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 bar-
ring 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 deci-
sion that must be made in the first instance by the trial
court on remand.
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 VERTE-
FEUILLE, Js., concurred.
1
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.
2
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 unconstitu-
tional. 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., 11.
3
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.
4
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. Pequon-
nock Yacht Club, Inc. v. Bridgeport, supra, 259 Conn. 601.
5
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.
6
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 commis-
sioner 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.