City of Hartford v. Public Utilities Commission, 106824

• Decision Date: 20 August 1973
• Docket Number: No. 106824,106824
• Citation: 30 Conn.Supp. 244,309 A.2d 844
• Court: Connecticut Court of Common Pleas
• Parties: CITY OF HARTFORD v. PUBLIC UTILITIES COMMISSION et al.

Page 844

309 A.2d 844

30 Conn.Supp. 244

CITY OF HARTFORD v. PUBLIC UTILITIES COMMISSION et al.

No. 106824.

Court of Common Pleas of Connecticut, Hartford County.

Aug. 20, 1973.

Alexander A. Goldfarb, Corp. Counsel, and Raynald B. Cantin, Asst. Corp. Counsel, Hartford, for plaintiff.

Robert K. Killian, Atty. Gen. and Frederick D. Neusner and Richard L. Barger, Asst. Attys. Gen., for named defendant.

Lewis H. Ulman, William J. O'Keefe and Judith A. Maynes, and Greenfield, Krick & Jacobs, New Haven, for defendant Southern New England Telephone Co.

BIELUCH, Judge.

On November 5, 1971, the defendant The Southern New England Telephone Company hereinafter called SNETCO, under Docket No. 11200 filed a proposed amendment of its rate schedule with the defendant public utilities commission, hereinafter called PUC, in accordance with § 16-19 of the General Statutes. After holding hearings on the proposed rates, the PUC authorized an increase. The city of Hartford, heereinafter called Hartford, appealed from this order and on May 8, 1972, obtained ex parte from a judge of this court '(p)ursuant to Section 16-39 of the General Statutes, as amended,' an 'Order of Supersedeas' staying the action of the PUC pending a full hearing and determination on the merits of the appeal. The PUC moved to vacate this stay, alleging, inter alia, that the appeal was brought under title 16 ('Public Service Companies') 'as amended by the supervening authority' of Public Acts 1971, No. 854 (General Statutes, c. 54), the Uniform Administrative Procedure Act, hereinafter designated UAPA; that prior to the adoption of Public Act 854, § 16-39 provided that such an appeal shall be a supersedeas of the decision appealed from; and that, since no order of supersedeas would be required if § 19-39 were still in effect, it must be concluded that the judge issued his 'Order of Supersedeas' under the authority of § 18(c) of Public Act 854, now § 4-183(c) of the General Statutes, which requires an order of supersedeas for a stay. SNETCO similarly moved for a dissolution, but only claimed 'illegality' and 'irreparable harm.' Thereafter, on May 11, 1972, after deciding that the order of supersedeas would result in irreparable injury to SNETCO, the judge ordered the new rates to become effective, subject to SNETCO's keeping complete and accurate records of the additional revenues and a refund with interest of all overcharges, if any, which the court may find on completion of the appeal. The filing of a bond to guarantee such repayments was not required.

A bond for payment of costs in the event the appeal is not sustained was fixed by the PUC under § 16-35 of the General Statutes in the amount of $250 and filed by Hartford in that amount. SNETCO now asserts that its costs to date for compliance with the order of May 11, 1972, are in excess of $350,000 and continue to accrue at the rate of $11,500 per month. For this reason, SNETCO has moved the court to require Hartford 'to file an additional bond with sufficient surety in the amount of $500,000 to pay all costs in case it fails to sustain its appeal.'

The question before the court is of exceptional and decisive importance. Its precedential value could have great bearing on the future course and trend of appeals from the PUC. Appeals to the courts from administrative boards and agencies exist only under statutory authority. East Side Civic Assn. v. Planning & Zoning Commission, 161 Conn. 558, 560, 290 A.2d 348. The statutory prescriptions governing appeals in public utility cases must be strictly observed. Hohensee v. Pennsylvania Public Utility Commission, 3 Pa.Cmwlth. 390, 283 A.2d 503, 504. Hartford's appeal was taken under our General Statutes, title 16, 'Public Service Companies,' chapter 277, 'Regulation and Supervision,' and yet it deviated therefrom by seeking an order of supersedeas in the manner required by title 4, 'Management of State Agencies,' chapter 54, 'Uniform Administrative Procedure Act,' adopted as Public Acts 1971, No. 854, effective January 1, 1972.

Section 16-39 provides: 'Each such appeal shall be a supersedeas of the order, authorization or decision appealed from, provided the court to which any such appeal is brought, or, if such court is not in session, any judge of the court of common pleas may, at any time, order that such appeal shall not so operate if, in the opinion of such court or judge, the appeal is brought for purposes of delay or if justice or equity or public safety or expediency so requires; or such court or judge may order that such appeal shall so operate only upon compliance by the parties, or any of them, with such terms or conditions as such court or judge may determine.' In an appeal under the UAPA, however, it is provided contrariwise in § 4-183(c): 'The filing of the petition does not of itself stay enforcement of the agency decision. The agency may grant, or the reviewing court may order, a stay upon appropriate terms.' Under the former, the order of supersedeas would be superfluous, but the subsequent order of refund accountability would be permissible on dissolution of the supersedeas or stay under both statutes. The provision in each for a conditional stay is deemed to include an implied power in the court to grant a conditional dissolution. See Chicopee Mfg. Co. v. Public Service Co., 97 N.H. 553, 554, 89 A.2d 751.

Initially, the court must resolve which of these statutes applies here. Public Acts 1911, chapter 128, the origin of title 16, chapter 277, contained in § 33 the first provision for an automatic supersedeas or stay in substantially the form of § 16-39 today. The enactment of the UAPA sixty years later has cast a long shadow upon this well-established procedure. Sections 16-39 and 4-183(c) are diametric contradictions in terms. The question of their compatibility as law must be determined by the legislative intent in the recent adoption of the UAPA. Public Acts 1971, No. 854, provided in its concluding sections as follows: 'Sec. 20. Sections 4-41 to 4-50 inclusive, and section 51-22 of the general statutes and other provisions in the general statutes which are inconsistent with the provisions of this act are repealed. Sec. 21. This act shall take effect on January 1, 1972, and, except as to proceedings then pending, applies to all agencies and agency proceedings not expressly exempted.' The statutes enumerated in § 20 pertained to the adoption and publication of state agency regulations. Left for consideration, therefore, is the general repealer provision in that section as well as the general applicability clause of § 21. Public Act 854 had its origin in the Revised Model State Administrative Procedure Act (1961) proposed by the National Conference of Commissioners on Uniform State Laws, and endorsed by the American Bar Association. While § 21 of Public Act 854 parallels § 19 of the model act, § 20 varies materially from its source in § 18 of the proposal, which reads in its entirety: 'The following acts and parts of acts are repealed: . . ..' The model act comment to this repeal provision makes the following observation: 'The preparation of this section will require careful and detailed work in each state. General repealers will ordinarily not suffice, and hence attention must be paid to each agency enabling act and the changes necessary therein.'

Other enactments of the 1971 and 1973 sessions of the legislature shed light on its intent in the adoption of the UAPA. Public Acts 1971, No. 621, although vetoed by the governor, is still relevant in its legislative consideration and action. Section 1 thereof amended § 16-19 of the General Statutes to give public utilities the right to opt for immediate collection of a designated portion of a proposed increase on the filing with the PUC of an assurance or surety bond to guarantee refunds of payments later found to be excessive. Section 3 waived the supersedeas of § 16-39 to such opted increases in rates. Public Act 621 was passed by the house of representatives on the same day as Public Act 854 and by the senate one day earlier than the latter act. Still further, Public Acts 1971, No. 870, in § 42 transferred jurisdiction of appeals under § 16-35 from the Superior Court to the Court of Common Pleas, and in § 43 similarly transferred the authority to cancel or condition the supersedeas of § 16-39. These provisions were approved by the house of representatives four days after Public Act 854 and by the senate five days before. The General Assembly at its 1973 Session further confirmed by its legislative action its original intent to separate § 16-39 from § 4-183(c). Public Acts 1973, No. 73-342, authorized the PUC to adopt regulations in accordance with the provisions of the UAPA. The latest show of intent by the legislature was its enactment of Public Acts 1973, No. 73-653, which expressly provided that appeals from the PUC were to be taken under the UAPA, and by its terms repealed §§ 16-35 through 16-39. The governor vetoed this bill on June 27, 1973, principally, as his veto message stated, because the legislation would eliminate the 'automatic stay against utility rate increases pending court appeals (and) . . . this bill would shift the burden of proof to the parties opposing a utility rate increase.'

Subsequent enactments may throw light on the legislative intent of a former related act. General Realty Improvement Co. v. New Haven,133 Conn. 238, 242, 50 A.2d 59. The legislative intent in the adoption of the UAPA as related to the provisions for appeal from the PUC contained in title 16, chapter 277, is clearly illuminated by the contemporaneous enactments of 1971 and the subsequent legislative action of 1973. PUC appeals under chapter 277 and the automatic supersedeas of § 16-39 have not been changed by the UAPA. SNETCO's motion for additional bond, therefore, must be judged under the provisions of § 16-39.

The request for further bond for costs in the amount of $500,000...