Village Creek Homeowners Ass'n, Inc. v. Public Utilities Commission
Decision Date | 02 May 1961 |
Citation | 148 Conn. 336,170 A.2d 732 |
Court | Connecticut Supreme Court |
Parties | VILLAGE CREEK HOMEOWNERS ASSOCIATION, INC. v. PUBLIC UTILITIES COMMISSION et al. Supreme Court of Errors of Connecticut |
Sidney Vogel, Norwalk, with whom was Robert B. Seidman, Norwalk, for appellant (plaintiff).
Walter F. Torrance, Waterbury, for appellee (defendant Connecticut Light and Power Co.).
Louis Weinstein, Asst. Atty. Gen., with whom, on the brief, was Albert L. Coles, Atty. Gen., for appellee (named defendant).
Before BALDWIN, C. J., KING, MURPHY and MELLITZ, JJ., and BORDON, Superiod Court Judge.
The plaintiff appealed to the Superior Court from an order of the public utilities commission granting permission to the Connecticut Light and Power Company to construct an additional steam turbine generator on Manresa Island in Norwalk. The complaint, copies of which were served upon the commission and the power company by a deputy sheriff, recited that it was an appeal to the Superior Court from the particular order of the commission; that the plaintiff and its members own residential property in the immediate neighborhood of the plant; and that they are aggrieved by the order. The complaint contains numerous reasons upon which the appeal is predicated. It was signed by a commissioner of the Superior Court. It did not, however, contain a citation directing the officer to make service upon either the commission or the power company and to summon them to appear in court. After the complaint, with the officer's return endorsed thereon, was filed in court, both defendants moved to erase the appeal for want of jurisdiction. The Superior Court granted the motions, and the plaintiff has appealed.
Appeals from any order, authorization or decision of the commission, except those approving the taking of land, are to be taken to the Superior Court within thirty days after the filing of the order, authorization or decision. General Statutes § 16-35. 'Such appeal shall be brought by a complaint in writing, stating fully the reasons therefor, with a proper citation, signed by competent authority, and shall be served at least twelve days before the return day upon the secretary of the commission and upon all parties having an interest adverse to the appellant.' § 16-37.
The questions to be determined are (1) whether the absence of a citation, signed by competent authority, renders the attempted appeal fatally defective and, if so, (2) whether a motion to erase is the proper way in which to take advantage of the defect. The commission and the power company concede that they had notice of the purported appeal but maintain that that is not enough to confer jurisdiction on the court.
The citation required by § 16-37 is a command to a duly authorized officer to summon the commission and all parties having an interest adverse to the appellant to appear in court on a specified day to answer the complaint. The summons is to be by service of true and attested copies of the complaint and the citation in the manner provided for the service of civil process. Practice Book, Form No. 472. The citation, signed by competent authority, is the warrant which bestows upon the officer to whom it is given for service the power and authority to execute its command. Guarantee Trust & Safe Deposit Co. v. Buddington, Wilson & Co., 23 Fla. 514, 528, 2 So. 885; 2 Encyc. Pleading and Practice, p. 211. Without it, the officer would be little more than a deliveryman. Hartley v. Vitiello, 113 Conn. 74, 79, 154 A. 255. It is not to be assumed that the legislature, in providing that the citation be a proper one and that the official who signs it be legally qualified to do so, intended to incorporate into § 16-37 words that are insignificant and meaningless. State ex rel. Kirby v. Board of Fire Commissioners, 129 Conn. 419, 424, 29 A.2d 452. The citation is a matter separate and distinct from the sheriff's return and is the important legal fact upon which the judgment rests. Baham v. Stewart Bros. & Co., 109 La. 999, 1006, 34 So. 54. A proper citation is essential to the validity of the appeal and the jurisdiction of the court. Case v. Humphrey, 6 Conn. 130, 139; State v. Leach, 7 Conn. 452, 456; Washburn v. Hammond, 25 Vt. 648, 649; Kitchen v. Randolph, 93 U.S. 86, 87, ...
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