Bottone v. Town of Westport

Co vello, J.,

dissenting. I respectfully disagree with the majority view. After forty-eight years as a worthy beacon in a sea of abstraction, our holding in State v. Stoddard, 126 Conn. 623, 13 A.2d 586 (1940), has been effectively overruled by the majority’s having limited *676its future applicability to the narrow range of cases that deal with delegations of power as between “the coequal branches of government,” i.e., the legislative, executive or judicial. This is not what Stoddard said nor is this the limitation that we have placed upon it in the cases that have followed.

We began our analysis in Stoddard by stating that “[t]he Constitution of this state provides for the separation of the governmental functions into three basic departments, legislative, executive and judicial, and it is inherent in this separation, since the law-making function is vested exclusively in the legislative department, that the Legislature cannot delegate the lawmaking power to any other department or agency.” (Emphasis added.) Id., 627. We went on to say, however, “[i]n order to render admissible such delegation of legislative power, however, it is necessary that the statute [1] declare a legislative policy, [2] establish primary standards for carrying it out, or [3] lay down an intelligible principle to which the administrative officer or body must conform . . . .” (Emphasis added.) Id., 628.

It seems clear to me that when we described the coequal branches of government in Stoddard, we used exclusively the word “department.” Yet when we went on to articulate the important principles which, as this majority noted, have thereafter served as “a canon of interpretation for virtually all delegations of legislative power,” we made them applicable not only to “departments],” but also to “agencpes],” “administrative officer^],” and “bod[ies].” I submit that it is therefore reasonably inferable that Stoddard intended a universal applicability to include all legislative delegations of powers and not simply delegations of power as between the coequal branches of government, i.e., delegations of power founded upon the separation of powers doctrine, as the majority today declares.

*677Since our ruling in Stoddard, we have referred to its analysis forty-seven times on a variety of delegation of powers issues.1 We have never once suggested that its applicability was limited to legislative delegations of power between the coequal branches of government. Even if the majority’s analysis is correct as to the initial limitation on its applicability, I submit that our ensuing global application of the Stoddard principles has enlarged its applicability to include delegations of power by the state to municipalities and muncipal agencies.

Having swept aside Stoddard (presumably because General Statutes § 7-147 could not have withstood constitutional analysis based upon the application of the Stoddard principles), the majority adopts a much less precise due process standard and examines § 7-147 to ascertain whether the “ ‘statute afford[s] a person of *678ordinary intelligence a reasonable opportunity to know what is permitted or prohibited.’ ” Seals v. Hickey, 186 Conn. 337, 343, 441 A.2d 604 (1982), quoting McKinney v. Coventry, 176 Conn. 613, 618, 410 A.2d 453 (1979). Having examined the common meaning of the statute’s key language, the majority concludes “that an ordinary person is put on notice of what activity may be prohibited under General Statutes § 7-147.” (Emphasis added.) It is not what is prohibited that renders the statute unconstitutional. It is what is authorized that does so. As the trial court correctly noted, § 7-147 authorizes an exemption from its declared prohibitions by obtaining “permission . . . in writing [from] the legislative body of the town . . . .” The statute is totally silent as to what circumstances will authorize the town to issue the required permission. The majority concludes that it is constitutionally permissible to leave this question to be answered by local ordinance. I submit that such a standardless delegation of authority is not permitted.

In New Milford v. SCA Services of Connecticut, Inc., 174 Conn. 146, 384 A.2d 337 (1977), we were confronted with a challenge to the constitutionality of General Statutes (Rev. to 1977) § 7-161 which authorized the establishment of garbage treatment plants after municipal permission was obtained from a “commission composed of the director of health and selectmen of the town in which such plant is to be located . . . .” The statute was silent as to the applicable criteria which would guide the commission in making its determination. Having applied a Stoddard analysis, we did not hesitate to find the statute unconstitutional and concluded that “[i]n conferring discretionary power upon the commission, the legislature has not only failed to provide reasonably adequate and definite guidance for the commission to pass upon an application for a statutory permit, but a reading of § 7-161 reveals the total *679absence of any standards which the local commission is to apply.” New Milford v. SCA Services of Connecticut, Inc., supra, 149-50. This is precisely the case with respect to § 7-147.

I would find no error.

We have decided forty-seven cases that have referred to or relied upon the State v. Stoddard, 126 Conn. 623, 13 A.2d 586 (1940) analysis. Twenty-two of them have dealt with the delegations of power to a municipality or a municipal agency. Carofano v. Bridgeport, 196 Conn. 623, 495 A.2d 1011 (1985); Beccia v. Waterbury, 192 Conn. 127, 470 A.2d 1202 (1984); Patry v. Board of Trustees, 190 Conn. 460, 461 A.2d 443 (1983); New Haven Commission on Equal Opportunities v. Yale University, 183 Conn. 495, 439 A.2d 404 (1981); New Milford v. SCA Services of Connecticut, Inc., 174 Conn. 146, 384 A.2d 337 (1977); Zenga v. Zebrowski, 170 Conn. 55, 364 A.2d 213 (1975); Mitchell v. King, 169 Conn. 140, 363 A.2d 68 (1975); Zoning Commission v. Tarasevich, 165 Conn. 86, 328 A.2d 682 (1973); Aunt Hack Ridge Estates, Inc. v. Planning Commission, 160 Conn. 109, 273 A.2d 880 (1970); Howell v. Johnson, 147 Conn. 290, 160 A.2d 486 (1960); Clark v. Town Council, 145 Conn. 476, 144 A.2d 327 (1958); Wilson Point Property Owners Assn. v. Connecticut Light & Power Co., 145 Conn. 243, 140 A.2d 874 (1958); Calve Bros. Co. v. Norwalk, 143 Conn. 609, 124 A.2d 881 (1956); Wilson v. West Haven 142 Conn. 646, 116 A.2d 420 (1955); Len-Lew Realty Co. v. Falsey, 141 Conn. 524, 107 A.2d 403 (1954); Gohld Realty Co. v. Hartford, 141 Conn. 135, 104 A.2d 365 (1954); Jennings v. Connecticut Light & Power Co., 140 Conn. 650, 103 A.2d 535 (1954); Strain v. Zoning Board of Appeals, 137 Conn. 36, 74 A.2d 462 (1950); Bishop v. Board of Zoning Appeals, 133 Conn. 614, 53 A.2d 659 (1947); Devaney v. Board of Zoning Appeals, 132 Conn. 537, 45 A.2d 828 (1946); New Haven v. New Haven Water Co., 132 Conn. 496, 45 A.2d 831 (1946); Murphy, Inc. v. Westport, 131 Conn. 292, 40 A.2d 177 (1944).