Simmons v. State

• Decision Date: 17 March 1971
• Citation: 160 Conn. 492,280 A.2d 351
• Court: Connecticut Supreme Court
• Parties: Augustus J. SIMMONS v. STATE of Connecticut.

Page 351

280 A.2d 351

160 Conn. 492

Augustus J. SIMMONS v. STATE of Connecticut.

Supreme Court of Connecticut.

March 17, 1971.

Thomas P. Byrne, Framington, for appellant (plaintiff).

John K. Jepson, Asst. Atty. Gen., with whom, on the brief, was Robert K. Killian, Atty. Gen., for appellee (state).

Before HOUSE, COTTER, THIM, RYAN and SHAPIRO, JJ.

THIM, Associate Justice.

This case arose from the efforts of the aeronautics commission to condemn land belonging to the plaintiff, Augustus J. Simmons, Charles A. Simmons, and the estate of Anastasia Simmons. The land is located in East Granby, and was condemned pursuant to § 48-12 of the General Statutes as amended by Public Acts 1967, No. 808 § 1, and General Statutes §§ 8-128-8-133. The proceeding to condemn the land was docketed as State v. Simmons, Superior Court, Hartford County, Condemnation No. 487. This appeal concerns only interest of the named plaintiff in the land. In order to achieve a full understanding of what transpired in the trial court, we have examined the files in Docket No. 487 and Simmons v. Parizek, Superior Court, Hartford County, No. 156899, an equitable action pending in the Superior Court in Hartford County, in addition to the file in this case, No. 156270.

On or about January 9, 1968, the state, acting by and through the aeronautics commission, filed with the clerk of the Superior Court a statement of compensation concerning the property. Docket No. 487. The statement recited that the premises were included in a master plan for Bradley International Airport; that the plan had been prepared and approved by the aeronautics commission pursuant to the requirements of chapter 266 of the General Statutes; that the town of East Granby had approved the request of the state to acquire the premises by eminent domain; that the state had determined the amount of compensation to be paid to the owners to be $15,000; and that, simultaneously with the statement of compensation, the commission filed its deposit and bond as provided in General Statutes § 8-130. A portion, $8000, of the deposit was the compensation to be paid to the plaintiff for his interest in the land.

On January 16, 1968, the plaintiff in Docket No. 487 filed a plea to abate the condemnation proceeding ¹ on the ground that the commission was proceeding pursuant to § 48-12 of the General Statutes as amended by Public Acts 1967, No. 808 § 1, whereas the proceeding to take his land for the expansion or improvement of the airport should have been instituted pursuant to General Statutes § 15-79. The commission demurred to the plea in abatement, and on June 5, 1968, the court, Radin, J., sustained the demurrer. Before the trial court had rules on the demurrer to the plea in abatement, the commission on January 22, 1968, obtained a certificate of taking for the land from the clerk of the Superior Court and filed it in the East Granby town clerk's office, in accordance with § 8-129 of the General Statutes. On May 7, 1968, the plaintiff filed this appeal in the Superior Court from the assessment of damages and the award of compensation.

Following the ruling of the trial court on the demurrer of the commission to the plea in abatement, the plaintiff, on July 15, 1968, commenced an action in the Superior Court in Hartford County seeking to restrain the aeronautics commission from condemning his land. Simmons v. Parizek, Superior Court, Hartford County, No. 156899. In the first count of his complaint the plaintiff alleged that the decision of the commission that there is a necessity for the taking of his land is unreasonable, that the decision was made in bad faith and that it was an abuse of the power conferred upon it. In the second count he alleged that the action of the commission was unlawful because the commission, in condemning his land, did not comply with the provisions of the applicable statute governing the condemnation action. General Statutes (Rev. to 1966) § 15-79. The plaintiff, in his prayers for relief, sought: (1) a temporary and permanent injunction restraining the commission from taking his property under §§ 8-128-8-133, rather than pursuant to § 15-79; and (2) a judgment declaring the taking order, which was filed in the land records, to be null and void. The commission filed a demurrer to both counts, but it was overruled, on each count, by the court, Rubinow, J. Thereafter, the commission filed its answer. The case is still pending in the Superior Court.

On or about October 18, 1968, in this appeal from the condemnation award, the defendant filed a motion to appoint a state referee for the purpose of reviewing the statement of compensation pursuant to § 8-132 of the General Statutes, to the extent that § 8-132 was applicable to the matter. The plaintiff objected to the motion of the defendant, claiming that the court should not proceed to appoint a state referee to make a review under § 8-132 before the court had determined whether the proceeding instituted by the commission and the state, to take the land of the plaintiff for expansion or improvement of Bradley International Airport, was legal and proper. The plaintiff sought relief concerning the legality and propriety of the taking before the condemnation case was referred to a referee. The objection was overruled, the court having concluded that it was required to appoint a referee pursuant to the motion made under § 8-132. The court then ordered that the matter be referred to the Honorable Raymond E. Baldwin, a state referee, and that he make a reassessment of damages and render judgment thereon. The plaintiff has appealed from that order, claiming that the trial court erred in referring the matter to the referee under the provisions of § 8-132. He further assigned as error the overruling of his claim that it was necessary to determine the legality and propriety of the application of § 8-132 before applying that statute. On argument before us, counsel for the plaintiff stated that the trial court has refused to assign his equitable action for trial until this court has decided the pending appeal.

The basic issue before us is whether the plaintiff should have had an opportunity to contest the reasonableness and necessity for the taking prior to, and in the same action as, the assessment of damages on that taking. It is clear that under § 48-12, prior to the 1967 amendment, and as referred to by § 15-79, necessity and like questions were open to review. State v. Fahey, 146 Conn. 55, 58, 147 A.2d 476. Thus, the determinative issue before us is whether the amendment to § 48-12, by Public Acts 1967, No. 808 § 1, served to change the procedure under § 15-79. If it did, then the procedure pursued was proper, as the only issue was the amount of compensation as provided for in § 8-132. If, however, the amendment to § 48-12 does not apply to proceedings under § 15-79, then the condemnation proceeding and the appeal therefrom would have been improper and the trial court in each proceeding would have been without authority to exercise jurisdiction. We find this issue to be determinative of the appeal before us.

On the day the commission filed the statement of compensation in the condemnation proceeding, and on the day of the issuance of the taking certificate for the property of the plaintiff by the clerk of the Superior Court, the pertinent provisions of § 15-79 provided that the state might take land for the 'establishment or for the expansion or improvement of an airport when, in the opinion of the commission, public convenience or safety requires, * * * upon paying just compensation to the owner of such land * * *. In case the state * * * cannot agree with such owner upon the amount of such compensation, the same shall be determined in the manner prescribed in section 48-12 for the taking of land for state institutions'. Section 48-12 prescribed the procedure which § 15-79 required to be followed in the event that the state could not agree with the owner upon the amount of compensation. One of its provisions required the state to file a petition in the Superior Court. In that petition the state was required to allege that the aeronautics commission had determined, pursuant to § 15-79, that it was necessary to take the property of the condemnee. State v. Fahey, 147 Conn. 13, 16, 17, 156 A.2d 463. The procedure specified in § 48-12 was modified by Public Acts 1967, No. 808 § 1, effective October 1, 1967. Public Acts 1967, No. 808 § 1, repealed § 48-12 and substituted in lieu thereof the following: 'The procedure for condemning land or other property for any of the purposes specified in sections 48-3, 48-4, 48-6, 48-8, and 48-9, if those desiring to take such property cannot agree with the owner upon the amount to be paid him for any property thus taken, shall be as follows: The comptroller in the name of the state, any town, municipal corporation or school district, or the trustees or directors of any state institution in the name of the state, shall proceed in the same manner specified for redevelopment agencies in accordance with sections 8-128, 8-129, 8-129a, 8-130, 8-131, 8-132, 8-132a and 8-133.' This new statute was in effect at the time the commission instituted the proceedings to take the plaintiff's property.

The answer to the question whether the modification of § 48-12 is operative so far as § 15-79 is concerned, is found in an established principle of statutory construction which has been thus summarized: 'As a general rule, the specification, modification or repeal of a statutory provision adopted by another statute through incorporation by reference is inoperative so far as the adopting statute is concerned, in the absence of expressed or implied legislative intent to the contrary. Where a particular statute is incorporated into another statute by specific or descriptive words, the presumption is that the legislature did not intend that modification or repeal of the adopted statute should...