236 Conn. 287 | Conn. | 1996
This is an appeal from a judgment of the trial court granting a declaratory judgment and injunctive relief in favor of the plaintiff, the board of public utilities commissioners of the city of Norwich, against the defendant, Yankee Gas Services Company, enjoining the defendant from furnishing gas services to consumers in the town of Preston. The sole question raised by the appeal is whether the defendant has a right to provide gas service to customers located in Preston. The defendant claims to have acquired such
The authorization to provide gas service in Norwich and Preston has been legislated in a series of interrelated special acts over the last century. In 1897, the legislature incorporated the Norwich Gas and Electric Company and granted it a franchise to provide gas and electricity in the city of Norwich and the towns of Norwich and Preston.
Pursuant to the pertinent special acts noted above, the city of Norwich and the plaintiff have been providing gas service to Norwich residents, industry and businesses for nearly a century. The plaintiff presently serves over 7200 industrial, commercial and residential gas customers. It owns and operates approximately 115 miles of gas distribution mains, five gate stations and other related gas facilities. Its annual sales exceed
The plaintiff asserts that it has not supplied gas to Preston because of “the economics of extending gas facilities, Preston’s rural nature and [because of] a lack of interest by Preston’s residents in obtaining gas service.” The plaintiff also asserts, however, that in 1994, when several potential major customers located in Preston expressed an interest in receiving gas service, the plaintiff immediately responded by taking affirmative steps to make gas service available to those prospective customers. Specifically, when the plaintiff learned in May, 1994, that the Norwich State Hospital in Preston was considering converting from oil to gas, the plaintiff installed eighty feet of unconnected pipe next to the hospital’s entrance, visited the hospital site, retained consultants to review the hospital’s specific needs, obtained bids for the installation of pipe and submitted a written proposal to the hospital.
In April, 1994, the defendant began installing a gas transmission pipeline from an existing line in the town of Montville through Preston in order to provide gas to the Foxwoods Casino in Ledyard, a town outside the plaintiffs franchise territory. In June, 1994, the plaintiff became aware that the defendant was installing the transmission line but believed that it was being installed to deliver gas to Foxwoods Casino only. The plaintiff subsequently learned that the defendant also intended to utilize the transmission line to service customers in Preston.
Thereafter, the plaintiff instituted this action seeking declaratory and injunctive relief to prohibit the defend
For the defendant to prevail on appeal, we must determine that § 2 of Special Act No. 195 (1927) gave CL&P a right to supply and sell gas in Preston. We would also have to determine that the defendant was permitted to purchase that right pursuant to § 2 of Special Act No. 218 (1955), despite seemingly contrary language in § 26 of chapter XII of Special Act No. 573 (1951), which provides that no company can acquire by purchase the right to provide gas service “within the territory in which the board of public utilities commissioners of the city of Norwich has the right to sell or distribute gas or electricity . . . Therefore, in order to conclude that CL&P and, by purchase, the defendant had a right to distribute gas in Preston, we first would have to decide that the 1927 special act that granted CL&P a statewide right to supply and sell gas except “within the territory occupied and served by any other company,” would have allowed CL&P to supply gas in Preston because Preston is a separate “territory” that is not being “occupied and served by any other company.” See 20 Spec. Acts 223, No. 195, § 1 (1927). We determine that the city of Norwich and the town of Preston constitute a single, unitary “territory” as contemplated by the 1927 special act granting CL&P a statewide gas franchise, and that the trial court’s conclusion that the “territory” is being occupied and served with gas by the plaintiff is not clearly erroneous. CL&P could not and the defendant consequently cannot invade the plaintiffs franchise “territory” without a direct grant
Our resolution of the question presented in this case turns on the meaning of the term “territory” in the 1927 special act granting CL&P a statewide right to supply gas. That statewide right to supply gas explicitly excluded “the territory occupied and served by any other company now incorporated
In 1897, when the Norwich Gas and Electric Company was incorporated and empowered to provide gas services to the city of Norwich and the towns of Norwich
In Special Act No. 225 (1919), the legislature again clearly treated the city of Norwich and the towns of Norwich and Preston as a single territory. In that special act, the legislature provided that no other company could “purchase, lease or otherwise acquire the franchises, rights or privileges of the Norwich Gas and Electric Company and by virtue thereof sell or distribute, or acquire the right to sell or distribute gas or electricity within the territory in which said [city of Norwich] has the right to sell or distribute gas or electricity, nor shall . . . any other company, by consolidation or merger with another company or by purchase or lease of its rights or franchises, have or acquire the right to sell or distribute gas or electricity within the said territory . . . .” (Emphasis added.) 18 Spec. Acts 180, No. 225 (1919). In those two special acts, the legislature was clearly referring to a single, unitary territoiy throughout which Norwich had the right to sell and distribute gas.
The defendant argues, however, that the term “territory” should not be construed to have a static, immutable meaning. The defendant contends that although
The fact that the legislature had referred twice to the city of Norwich and the towns of Norwich and Preston as a single “territory” when describing the plaintiffs gas franchise is persuasive evidence that the legislature in 1927 intended the term “territory” to possess the same meaning and to include the same area. “ ‘[T]he legislature is presumed to exercise its statutory authority with knowledge of existing statutes and with the intention of creating one consistent body of law.’ ” Caron v. Inland Wetlands & Watercourses Commission, 222 Conn. 269, 277, 610 A.2d 584 (1992); Kinney v. State, 213 Conn. 54, 65, 566 A.2d 670 (1989). An identical term used in 1897, 1919 and 1927 in special acts pertaining to the same subject matter should not be read to have differing meanings unless there is some indication from the legislature that it intended such a result. See Link v. Shelton, 186 Conn. 623, 627, 443 A.2d 902 (1982) (court may look to meaning given same phrase in even unrelated statutes and consider that where legislature uses same phrase it intends same meaning); 2B J. Sutherland, Statutory Construction (5th Ed. Singer 1992) § 51.02 (identical words or phrases used in related statutes given same meaning unless contrary intent appears).
“Territory” has been defined as a region or district. Funk & Wagnalls New Standard Dictionary of the English Language (1947). That definition, coupled with the previously noted language of the special acts, suggests that when the legislature assigned a territory to Norwich to distribute gas, it did not intend the assigned territory to be broken up by municipal boundaries unre
The defendant argues that an interpretation of the term “territory” in the 1927 special act that melds Nor
This argument incorrectly assumes that any service, no matter how small or insignificant, in a given territory will allow a company to claim successfully that it has “occupied and served” the territory within the meaning of the 1927 special act. We are not persuaded that a trial court could determine, as a factual matter, that a company with a gas franchise extending over several municipalities that serviced only one small area within that territory had, under any reasonable definition, “occupied and served” the territory. Several factors, including the number of customers being served relative to the number of customers in the territory as a whole and the amount of unmet demand for gas services within the territory, would have to be considered in order to determine appropriately whether an area is being “occupied and served.”
The trial court in this case concluded that the plaintiffs extensive provision of gas services within Norwich and its apparent willingness and ability to deliver those services to Preston if the need arose was a sufficient
Because the trial court’s conclusion that the relevant territory comprised of Norwich and Preston is being “occupied and served” by the plaintiff is not clearly erroneous, we conclude that Special Act No. 195 (1927) did not confer a right upon CL&P to sell gas in any part of the territory in which Norwich had a right to sell gas, i.e., Norwich and Preston. We need not consider, therefore, whether § 2 of Special Act No. 218 (1955) empowered the defendant to purchase a right to sell gas in Preston or whether § 26 of chapter XII of Special Act No. 573 (1951) prevented it from doing so. Because the 1927 special act did not give CL&P the right to provide gas service in Preston, the defendant could not have purchased such a right from CL&P, even if not prevented from doing so by § 26 of chapter XII of Special Act No. 573 (1951).
In this opinion the other justices concurred.
Until 1951, the city of Norwich and the town of Norwich were distinct municipalities. See 26 Spec. Acts 459, No. 573, c. I, § 1 (1951).
The city of Norwich did, at one point, service a gas customer whose property was partially located in the town of Preston.
The defendant argues for the first time on appeal that the plaintiff, a municipal agency, does not fall within the definition of the term “company” within the meaning of the 1927 special act and that the plaintiff therefore cannot claim the protection afforded by that special act. The defendant seeks review under the “plain error” doctrine of Practice Book § 4185. Such review, however, is limited to those “ ‘truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.’ ” Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 25, 664 A.2d 719 (1995); State v. Groomes, 232 Conn. 455, 467, 656 A.2d 646 (1995); Scott v. Barrett, 212 Conn. 217, 222, 561 A.2d 941 (1989). The defendant’s belated claim of error pertaining to the definition of “company” does not meet that standard and we decline to review it.
The defendant asks us to interpret § 1 of Special Act No. 195 (1927) in light of the legislature’s action in 1951. The defendant points out that Special Act No. 225 (1919), which provided that no company could purchase the right to sell gas or electricity in the plaintiffs territory, explicitly provided that it would not “impair or limit any rights, franchises or privileges heretofore granted, and now existing, relating to the manufacture, distribution or sale of electricity,” while § 26 of chapter XII of Special Act No. 573 (1951), which contained the same proscription against purchasing gas or electricity rights in the plaintiffs territory, explicitly provided that it would not “impair or limit any rights, franchises or privileges heretofore granted, and now existing, relating to the manufacture, distribution or sale of gas or electricity.” (Emphasis added.) The defendant claims that this difference impliedly indicates legislative recognition that the legislature in 1927 had granted to CL&P the right to provide gas services within the area in which the plaintiff had the right to provide gas services. We disagree. We are unable to conclude that the added explicit protection of preexisting gas franchises in 1951 provides a sufficient basis upon which to conclude that the 1927 special act had granted to CL&P the right to provide gas services in Preston. The legislative history in 1951 is silent as to whether the explicit protection of preexisting gas rights was a response to the 1927 special act, as the defendant claims, or whether it was merely a clarification of the 1919 special act, as the plaintiff claims. See Conn. Joint Standing Committee Hearings, Cities and Boroughs, Pt. 2, 1951 Sess., pp. 419-26. The legislative intent in 1927 was clear. Ambiguous legislative action in 1951 is an insufficient basis upon which to override the legislative intent in 1927.
Moreover, the plaintiffs gas franchise is not exclusive and the legislature is at all times free to grant to the defendant or any other company a gas franchise in Preston.
Even if we had concluded that Preston is a separate entity and that Special Act No. 195 (1927) granted CL&P the right to supply gas in Preston, we nevertheless would conclude that Special Act No. 218 (1955) did not give the defendant the right, by the purchase of CL&P’s rights, to supply gas in Preston. Only four years earlier, the legislature had made clear that no company could purchase the right to sell gas “within the territory in