Southern Connecticut Gas Co. v. Housing Authority of City of New Haven

• Decision Date: 29 November 1983
• Citation: 191 Conn. 514,468 A.2d 574
• Court: Connecticut Supreme Court
• Parties: SOUTHERN CONNECTICUT GAS COMPANY v. HOUSING AUTHORITY OF the CITY OF NEW HAVEN. SOUTHERN CONNECTICUT GAS COMPANY v. HOUSING AUTHORITY OF the CITY OF NEW HAVEN et al.

Page 574

468 A.2d 574

191 Conn. 514

SOUTHERN CONNECTICUT GAS COMPANY v. HOUSING AUTHORITY OF the CITY OF NEW HAVEN.

SOUTHERN CONNECTICUT GAS COMPANY v. HOUSING AUTHORITY OF the CITY OF NEW HAVEN et al.

Supreme Court of Connecticut.

Argued Oct. 7, 1983.

Decision Released Nov. 29, 1983.

Frank B. Cochran, New Haven, for appellant-appellee (respondent in the first case and named respondent in the second case).

James E. Rice, Bridgeport, with whom, on brief, was David S. Maclay, Bridgeport, for appellee-appellant (petitioner in both cases).

Before PETERS, PARSKEY, SHEA, GRILLO and COVELLO, JJ.

PETERS, Justice.

These cases involve the scope of rent receiverships statutorily authorized for public service companies that are precluded from terminating utility services to residential dwellings. The petitioner, Southern Connecticut Gas Company (hereinafter gas company), sought appointment of a receiver for the rental income of the respondent, housing authority of New Haven (hereinafter housing authority), alleging that the housing authority was in substantial default of payments due for gas service in designated state and federally financed premises for which the housing authority was the owner, agent, lessor or manager. Despite procedural and substantive objections by the respondent, the trial court found an outstanding indebtedness of $799,387.83, and appointed a receiver pursuant to General Statutes § 16-262f. ¹ The respondent promptly appealed from the judgment of the trial court. During the pendency of the appeal from this judgment, its effect was stayed so that the appointed receiver has not yet undertaken his court-ordered responsibilities. Pending resolution of the appeal, the gas company has continued to provide gas service and the housing authority has paid, in part under protest and subject to a claim of refund, the amount of $1,760,000. Relying on those payments, the respondent housing authority thereupon moved the trial court to vacate its judgment and to dismiss the petition for the appointment of a receiver. The trial court granted this motion. Two appeals are currently before us, the respondent's appeal from the appointment of the rent receiver, and the petitioner's appeal from the receivership's termination. We find no error in the first appeal but error in the second appeal.

I

The respondent housing authority raises four issues in its appeal. It claims error in the trial court's: (1) denial of its motion to dismiss the petition for receivership; (2) failure to uphold its alleged exemption under General Statutes § 8-65; (3) failure to hold the rent receivership statute, General Statutes § 16-262f, unconstitutional; and (4) limitation of the scope of the rent receivership hearing.

The respondent moved the trial court to dismiss the petition for a receivership on the ground that the petitioner had failed to comply with the provisions of Practice Book § 506. That section, which governs the appointment of "a receiver of rents ... in or ancillary to a civil action," appears to contemplate the initiation of a prior or contemporaneous civil action to which the receivership can relate. The petitioner was alleged to have filed no civil action. Although the petitioner has in fact commenced civil proceedings in the trial court since that time, ² it contested the motion to dismiss on the basis that the Practice Book section was inapplicable to utility rent receiverships under § 16-262f. The trial court, relying on the holding in Hartford Electric Light Co. v. Tucker, 35 Conn.Sup. 609, 613-15, 401 A.2d 454 (1978), that such a utility rent receivership proceeding is a special statutory proceeding and not a civil action, denied the motion to dismiss. We agree.

Section 16-262f permits public service companies to petition for a statutory rent receivership under limited circumstances that are statutorily linked to the § 16-262e(a) prohibition on the termination of utility services. Under § 16-262e(a), ³ service may not be terminated: (1) to a residential dwelling; (2) despite nonpayment of a delinquent account; (3) for service billed directly to the residential building's lessor, owner, agent or manager; and (4) when it is impracticable for occupants of the building to receive service in their own name. Unable to terminate service to such a residential dwelling, public service companies are expressly instructed, by § 16-262e(a), to "pursue the remedy provided in section 16-262f." Under § 16-262f, a public service company may seek appointment of a receiver of the rents upon the "default of the owner, agent, lessor or manager of a residential dwelling who is billed directly ... for utility service furnished to such building ...." The section requires an immediate judicial order "to show cause why a receiver should not be appointed," and a prompt hearing, whose "sole purpose ... shall be to determine whether there is a sum due and owing between the owner, agent, lessor, or manager and the ... utility." The summary rent receivership proceedings authorized by § 16-262f constitute, as we have previously recognized, a statutory tradeoff for the requirement of continued service imposed by § 16-262e(a). Hartford Electric Light Co. v. Tucker, 183 Conn. 85, 94, 438 A.2d 828, cert. denied, 454 U.S. 837, 102 S.Ct. 143, 70 L.Ed.2d 118 (1981). Because these statutory proceedings are sui generis, they do not require the filing of a companion civil action, and the respondent's motion to dismiss was properly denied.

The respondent's second claim of error maintains that a public housing authority is afforded immunity from the rent receivership provisions of § 16-262f by virtue of the exemption provision of § 8-65 of the General Statutes. Under that section, "[a]ll real and personal property ... of a housing authority shall be exempt from ... execution ... or other judicial process ... provided the provisions of this section shall not apply to or limit ... the right of obligees to pursue any remedies for the enforcement of any pledge or lien given by a housing authority on its rents...." The trial court found this claim to be unpersuasive because it concluded that the word "lien" should be read to include involuntary as well as voluntary liens. On such a reading of "lien," a rent receivership could be encompassed within the proviso of § 8-65, and the two statutes would not be in conflict. Although we disagree with this reasoning, we find the respondent's claim unsustainable on other grounds.

The precise ambit of the provisions of § 8-65 need not be determined today. For present purposes, it suffices to note that its language appears to address directly only two types of liens: judicial liens, which are forbidden, and consensual liens, which are permitted. We are concerned, in this case, with a receivership which, if it were to be considered a lien at all, would be a statutory lien. The receivership authorized by § 16-262f does not result in the issuance of "execution or other judicial process," nor does it arise out of a "pledge or lien given by a housing authority."

The statutory problem confronting us can be summarized as follows. Section 8-65, which specifically establishes the immunity of public housing authorities, makes no provision for any kind of statutory liens, including statutory rent receiverships. Section 16-262f, which specifically establishes a right to a utility rent receivership, makes no distinction between private and public ownership of residential dwellings, ⁴ and hence makes no specific provision for public housing authorities. We believe that this statutory standoff is best resolved on the basis that § 16-262f, because it was enacted in 1975, must prevail over § 8-65, which was enacted in 1939. It is a well-established principle of statutory construction that later enactments by the General Assembly are presumed to repeal earlier inconsistent ones to the extent that they are in conflict. Beccia v. Waterbury, 185 Conn. --- (43 CLJ 8, pp. 1, 5) 441 A.2d 131 (1981); C. White & Son, Inc. v. Rocky Hill, 181 Conn. 114, 123, 434 A.2d 949 (1980); Pizzola v. Planning & Zoning Commission, 167 Conn. 202, 206, 355 A.2d 21 (1974). Furthermore, a later enactment will have this effect without regard to the characterization of either act as general or specific in its effect. Beccia v. Waterbury, supra, ---, 441 A.2d 131. Although repeal by implication is generally disfavored, this route is incumbent upon us when, as in this case, the two relevant statutes cannot stand together. See State v. Carbone, 172 Conn. 242, 256, 374 A.2d 215, cert. denied, 431 U.S. 967, 97 S.Ct. 2925, 53 L.Ed.2d 1063 (1977). The respondent housing authority therefore cannot prevail on this claim of error.

The respondent's third and fourth claims of error relate to that provision of § 16-262f which limits the scope of the judicial hearing on the application for a rent receivership. Under § 16-262f(a), the court is authorized to hold a hearing no later than seventy-two hours after the issuance of a show cause order relating to the receivership. "The sole purpose of such a hearing," according to the statute, "shall be to determine whether there is a sum due and owing between the owner, agent, lessor, or manager and the company or municipal utility." In its third claim of error, the respondent challenges the constitutionality of so limited a hearing, and in its fourth claim of error it challenges the propriety of evidentiary rulings grounded in the limitations statutorily imposed on the hearing. We find neither of these claims persuasive.

The respondent's constitutional attack on § 16-262f argues that it is impermissible under the due process clauses of the state and federal constitutions; Conn. Const., art. I § 10; U.S. Const., amend. XIV; to restrict the issues that can be heard on a receivership petition. The respondent makes this argument both on its own behalf and on behalf of other creditors who are alleged to have superior...