Norwich Land Co. v. Public Utilities Commission

Bogdanski, J.

(dissenting). I cannot agree that the plaintiff’s appeal to the Court of Common Pleas was not initiated in a timely manner.

Section 16-35 of the General Statutes reads in relevant part: “Any . . . corporation or person aggrieved by any order, authorization or decision of the commission ... in any matter to which he *8 or it was or ought to have been made a party, may appeal therefrom to the court of common pleas within thirty days after the filing of such order, authorization or decision.” In this case, the aggrievement of the plaintiff under that statute has not been questioned.

Though § 16-35 establishes the right to appeal, it contains no provisions which relate to providing an aggrieved person with notice of action taken upon which that right to appeal may be exercised. In Hubbard v. Planning Commission, 151 Conn. 269, 271-72 , 196 A.2d 760 , Justice Alcorn stated for a unanimous court: “The right of appeal, if it is to have any value, must necessarily contemplate that the person who is to exercise the right be given the opportunity of knowing that there is a decision to appeal from and of forming an opinion as to whether that decision presents an appealable issue. Until the prospective appellant has either actual or constructive notice that a decision has been reached, the right of appeal is meaningless.” In Hubbard , a statute required an appeal to be brought within fifteen days of the taking of “official action” by the planning commission. Despite the fact that there was no applicable notice provision, the court held that the words “official action” embraced the announcement of the commission’s decision to “interested parties,” and that the appeal period did not begin to run until notice was sent.

The portion of § 16-35 which allows an appeal to be brought within “thirty days after the filing of such order” similarly contemplates that the act of filing embraces the act of giving proper notice. Otherwise, the commission could effectively destroy the right of appeal by refraining from giving notice of its decisions until thirty-one days after filing *9 copies of its orders in its offices. A statute conferring a privilege or a right implicitly carries with it everything necessary to make that privilege or right effectual and complete. Bergner v. State, 144 Conn. 282, 288 , 130 A.2d 293 . If the word “filing” in § 16-35 were to be construed literally, then the right established would be ineffective and incomplete. In order to effectuate the right of appeal, it is necessary that the appeal period commence at the time when the commission gives notice of its decision to persons entitled thereto, not when the decision is obscurely filed with a mass of other documents at the commission’s office.

The plaintiff was an intervenor at the hearing, was considered to be a “party in interest” by the commission, and was mailed notice of the decision and order of the commission on December 20, 1974. In measuring the plaintiff’s appeal period from the date that notice was sent, the thirtieth day would have fallen on Sunday, January 19,1975. The plaintiff commenced its appeal on Monday, January 20, 1975, by serving the secretary of the public utilities commission pursuant to § 16-37 of the General Statutes. The case of Lamberti v. Stamford, 131 Conn. 396, 400 , 40 A.2d 190 , cited by the majority, recognized that if the last day for performance of certain acts falls on a Sunday or a legal holiday, the doing of that act on the following day would be timely. See also Alderman Bros. Co. v. Westinghouse Air Brake Co., 91 Conn. 383, 385 , 99 A. 1040 . It would be most unrealistic to require the plaintiff to seek out the secretary of the commission on a day when the commission offices are closed, and when the secretary may be out of town or otherwise occupied. General Statutes § 16-6. See Lamberti v. Stamford, supra. Moreover, § 52-71 of the General *10 Statutes renders void all process, except complaints for injunctions, issued or served between sunrise and sunset on Sundays. Considering those circumstances, the plaintiff’s appeal, initiated on Monday, was timely taken.

The majority, however, have concluded that the plaintiff was not entitled to notice of the commission’s order, and that the plaintiff’s appeal period began on the date of the actual filing of the order, not on the date that a notice was sent to it. That conclusion renders meaningless the plaintiff’s right of appeal established by § 16-35.

Section 16-9 of the General Statutes, entitled “Orders,” contains a notice provision applicable to the public utilities commission’s decisions which states in part: “Written notice of all orders, decisions or authorizations issued by the commission shall be given to the company or person affected thereby.” See also Regs. Conn. State Agencies, § 16-1-15 (d). It is true that it was stated in New Haven v. United Illuminating Co., 168 Conn. 478, 491 , 362 A.2d 785 , that the language of § 16-9 suggests that the legislature intended that notice should be given only to the party to whom the order was directed. In that case, however, the appellants do not appear to have been active participants at the administrative level. The plaintiff in the present case was an intervenor and a “party in interest.” The commission itself considered the plaintiff a person to whom notice of its decision should have been sent, and did, in fact, send notice. It is most reasonable to conclude that the legislature intended that active intervenors in an agency proceeding be given notice of the outcome of that proceeding, particularly if they are given a right to appeal the decision.

*11 Even if it is assumed that the provisions of § 16-9 are read so as to exclude the plaintiff from its terms, the reasoning in Hubbard v. Planning Commission, supra, would require that the plaintiff be given notice of the commission’s decision. If a person participates as an intervenor and is granted a right to appeal from the decision, to hold that he is not entitled to notice of that decision would be incongruous. If it were otherwise, the right of appeal would be meaningless.

I would, therefore, set the judgment aside and remand the ease with direction that the trial court consider the other grounds urged by the defendants in their pleas in abatement.