Textron, Inc. v. Wood

• Decision Date: 03 December 1974
• Citation: 355 A.2d 307,167 Conn. 334
• Court: Connecticut Supreme Court
• Parties: TEXTRON, INC. v. A Earl WOOD, Commissioner of Transportation.

Page 307

355 A.2d 307

167 Conn. 334

TEXTRON, INC. v. A Earl WOOD, Commissioner of Transportation.

Supreme Court of Connecticut.

Dec. 3, 1974.

Victor Feingold and Paige J. Everin, Asst. Attys. Gen., with whom, on the brief, was Robert K. Killian, Atty. Gen., for the appellant (defendant).

Bruce W. Manternach, Hartford, with whom was Jack S. Kennedy, West Hartford, for the appellee (plaintiff).

Before HOUSE, C.J., and COTTER, SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

COTTER, Associate Justice.

In this action the plaintiff seeks a declaratory judgment determining 'whether the plaintiff's property has been effectively taken by the defendant and if so, the date of such taking.' The case was referred to Hon. Howard W. Alcorn, state referee, who, exercising the powers of the Superior Court, answered the question propounded in the affirmative and concluded that the property 'in a constitutional sense' was 'taken by the Highway Department on September 8, 1966.' The defendant has appealed from the judgment rendered and from the denial of the defendant's motion to open judgment.

The finding is not subject to any material change and discloses the following facts: The Fafnir Bearing Company, a Connecticut corporation, owned and operated several manufacturing plants in the towns of New Britain and Newington, one of which was located on John Street in New Britain. In August, 1962, the state highway department notified Fafnir that a proposed construction of state highway, route 72, might pass through all or a portion of the John Street plant. On November 4, 1965, at a meeting with representatives of the highway department, Fafnir learned from an aerial photograph on which taking lines had been drawn that the proposed highway would take two whole buildings and about half of another, and that the plant's truck dock would be rendered unusable. Department representatives further informed Fafnir at this meeting that the proposed route could not be varied as much as fifteen feet.

At another meeting with highway department representatives, in November, 1965, Fafnir was told that the taking lines were fixed, that these could not be significantly changed, and that both Fafnir and the highway department should proceed thenceforth on that basis. At that meeting Fafnir expressed concern over the effect which the taking would have on the operations at the John Street plant and emphasized the great amount of time Fafnir needed to meet the problem.

Two months later, in January, 1966, the department prepared a map which depicted the taking of a triangular portion of the John Street plant containing about .77 acre with buildings or parts of buildings thereon, then being used by Fafnir for parking, truck access, and steel storage. Over the years slight revisions of the taking map have been made none of which made a significant change in the property to be taken as shown in the map of January, 1966. Then on March 8, 1966, the department formally wrote Fafnir that it had found it necessary to acquire a portion of the John Street property; that it was promptly proceeding with surveys and title searches; that appraisers would soon visit the property; that it would then discuss the purchase of the property; and that it hoped this would help Fafnir in its planning. Previously in January, 1966, highway department appraisers had already visited the property and Fafnir had furnished them data and information. Fafnir again met with highway department officials on April 12, 1966, and told them that it would be necessary to build and move to a new location, an operation whose completion would take about eighteen to twenty months. Fafnir considered it imperative that the vital operations of the John Street plant not be interrupted. In response, the highway department considered the possibility of a tunnel design for that portion of the route, but this solution was found to be unacceptable to both Fafnir and the department.

Fafnir was told by the department that it must be out of the John Street property which was to be taken by 1967. Accordingly, Fafnir's board of directors on July 21, 1966, voted to move the John Street plant operations to an addition to be constructed at the company's Newington plant, in order to avoid a cessation of operations which, it was felt, the taking process would necessitate. Later that month, on July 24, the highway commissioner informed Fafnir that 'our design people' were being advised to proceed with normal highway construction through the area adjacent to Fafnir's building and that the rights-of-way bureau would also be advised to proceed on that basis.

In September, 1966, the department advertised projects tentatively scheduled for construction bids, including a notice that the portion of route 72 through the John Street plant was scheduled to be advertised for construction bids in November, 1966. Pursuant to General Statutes § 13a-57, on September 8, 1966, the department filed a map in the New Britain town clerk's office depicting the layout of route 7i which ran through Fafnir's John Street property.

In the same month, Fafnir began construction of the addition to its Newington plant, and during the summer of 1967 it completed this construction and moved the John Street operations to the Newington factory.

In January, 1967, the highway department advised Fafnir that actual construction would not begin until the summer of 1969, and completion would take place in two years. Over a period of several years, department representatives repeatedly stated their intention to initiate formal statutory condemnation proceedings by filing the certificate of taking as provided in § 13a-73(b) of the General Statutes. There was evidence, and the trial referee in the unchallenged finding so found, that the defendant was fully prepared to proceed with the statutory taking both in February, 1971, and at the time of trial. Nevertheless, no statutory procedure to take the property was undertaken until August 22 1973, when the defendant finally filed the certificate of taking, pursuant to § 13a-73(b).

I

The defendant has challenged the jurisdiction of the lower court to entertain this action on several grounds. First, it is argued that the suit, although nominally brought against the commissioner of the department of transportation is in truth one against the state; and that since the latter has not formally consented to be sued, and since there is no statute specifically authorizing actions against the state for declaratory judgments, the suit is barred by the doctrine of sovereign immunity. Although this defense was raised for the first time in the defendant's brief on appeal, questions such as this involving the court's jurisdiction must be considered by this court if and when they are raised. Wawrzynowicz v. Wawrzynowicz, 164 Conn. 200, 203, 319 A.2d 407; State ex rel. Kelman v. Schaffer, 11 Conn. 522, 527, 290 A.2d 327; see Maltbie, Conn.App.Proc. § 307.

Connecticut has long recognized the common-law rule that the state, as a consequence of its sovereignty, is immune from suit unless by appropriate legislative action it has consented to be sued. See Baker v. Ives, 162 Conn. 295, 298, 294 A.2d 290, and the many cases cited; and see Fidelity Bank v. State, 166 Conn. 251, 348 A.2d 633, for a recent formulation of the doctrine. The same immunity extends to such state officers as the defendant when acting in the performance of the sovereign power, since an action against the state highway commissioner is in effect one against the state as sovereign. Baker v Ives, supra. The state is a legal entity which can function only through its officers and agents or other duly constituted and qualified authorities. State v. Aetna Casualty & Surety Co., 138 Conn. 363 367-368, 84 A.2d 683. Rooted in the ancient common law, the doctrine of sovereign immunity from suit was originally premised on the nonarchical, semi-religious tenet that 'the King can do no wrong.' Borchard, 'Government Liability in Tort,' 34 Yale L.J. 1, 2. In modern times, it is more often explained as a rule of social policy, which protects the state from burdensome interference with the performance of its governmental functions and preserves its control over state funds, property, and instrumentalities. See, e.g., United States v. Lee, 106 U.S. 196, 206, 1 S.Ct. 240, 27 L.Ed. 171; Block, 'Suits against Public Officers and the Sovereign Immunity Doctrine,' 59 Harv.L.Rev. 1060, 1061; Glassman v. Glassman, 309 N.Y. 436, 131 N.E.2d 721. The public service might be hindered, it is believed, and the public safety endangered, if the supreme authority of the state could be subjected to suit at the instance of every citizen, and thereby controlled in the use and disposition of the means required for the proper administration of government. Fitts v. McGhee, 172 U.S. 516, 19 S.Ct. 269, 43 L.Ed. 535.

The defendant contends that these principles and policies constitute an insurmountable obstacle to the plaintiff's prayer for a declaration of its rights in the present case. The fundamental reasons underlying the doctrine of sovereign immunity, however, have no application here. This is not a case in which the plaintiff seeks a judgment that will enable it to 'control the activities of the state,' the customary touchstone upon which this court has determined whether or not a particular suit is one 'against' the state. Simmons v. Parizek, 158 Conn. 304, 306, 259 A.2d 642. See also Murphy v. Ives, 151 Conn. 259, 262, 196 A.2d 596; Anderson v. Argraves, 146 Conn. 316, 319-320, 150 A.2d 295; Somers v. Hill, 143 Conn. 476, 480, 123 A.2d 468. The plaintiff, by this action for a declaratory judgment is not demanding any affirmative or coercive relief against the state or any of its officials. Textron did not couple with its request for a judicial declaration of its rights a prayer for damages or any other consequential relief, a course open to plaintiffs bringing...