author: Hull, J. Arthur H. Healey, J.,

text:
    Windham First Taxing District v. Town of Windham
    (13337)
    Peters, C. J., Healey, Shea, Callahan and Hull, Js.

      (One justice dissenting)

    Argued May 10
    decision released August 9, 1988

      M. Hatcher Norris, for the appellant (plaintiff).

      John D. Boland, for the appellee (defendant).
   Hull, J.

This case involves a turf war between the Windham First Taxing District (district) and the consolidated town of Windham (town). The dispositive issue is whether the district’s furnishing of street lighting in the district, in accordance with a provision of its charter, preempts the field so that the town cannot tax the district residents for such services. We agree with the trial court that a special service tax district, organized under chapter 105 of the General Statutes, cannot prevent a town from providing and taxing for such services, if the town is so authorized by its charter or the General Statutes. We, therefore, find no error.

The district brought a declaratory judgment action against the town to determine whether the town’s taxation of residents of the district for services paid for and provided by it “violates the rights of the members of the Windham First Taxing District to be free of taxation without representation, to not be deprived of property without due process of law, and to not be subjected to dual taxation.” The district also sought an injunction against the town restraining it from taxing the residents of the district for services provided and paid for by the district. The town’s third special defense, pertinent to this appeal, claimed that the district “was not created to usurp but merely to supplement and enhance the Town’s authority to provide the specific services.” The district amended its prayer for relief claiming a declaratory judgment determining: (1) whether the town has the power to tax the residents of the district for street lights; (2) whether the taxation by the town of the residents of the district for services not supplied nor paid for by the town constitutes the deprivation of property without due process of law; and (3) whether the taxation by the town of the residents of the district for services supplied by, paid for and taxed by the district constitutes impermissible dual taxation.

From the joint stipulation of the parties and accompanying exhibits the court made the following finding of facts. The plaintiff district is a municipal corporation that was organized by vote on April 14,1981, pursuant to chapter 105 of the General Statutes and has continued to exist since that date. Pursuant to its charter and by-laws, the district was originally created as a fire district “for the purpose of providing fire protection and certain emergency services normally attendant to fire protection facilities.” The district constitutes a separate taxing district within the boundaries of the defendant town and is subject to those limitations specified in the General Statutes with respect to chapter 105 corporations. It is a statutory special service district encompassing a geographical area coextensive with the areas outside the former boundaries of the city of Willimantic. The district’s charter provides that the district shall be established for the purpose of lighting streets, in addition to the purpose of providing fire protection.

The defendant town is a Connecticut municipality that has existed since 1692, and that, pursuant to the Home Rule Act and vote of December 15, 1982, was consolidated with the former city of Willimantic. The town has been governed since July 1, 1983, pursuant to a consolidation charter. The consolidation charter creates within the town two special service districts, the “Windham Service District”, encompassing the area outside the boundaries of the former city of Willimantic and coextensive with the area encompassing the plaintiff district, and the “Willimantic Service District” consisting of the area within the boundaries of the former city of Willimantic. The plaintiff district was never consolidated with the town pursuant to the Home Rule Act although provision for consolidation of such a district is found in General Statutes § 7-194.

The consolidation town charter allocates responsibility for providing fire and police protection services within their respective boundaries to each of the service districts. That charter further provides that the “town of Windham shall have all the powers previously granted to the town of Windham and the city of Willimantic, and all additional powers conferred upon municipalities by the Connecticut General Statutes . . . .”

Pursuant to its charter and the General Statutes, the district taxes its residents for services that it provides to them within the district. The district allocates a portion of its budget for street lighting and pays the provider, Connecticut Light and Power (CL&P), for the cost of street lighting incurred by the district within its territorial boundaries.

Under the consolidation charter and the General Statutes, the town taxes the residents in the geographical area comprising the town, including the geographical area of the district. The town budgets monies for street lighting throughout the town. It actually pays for the cost of street lighting only in the geographical area comprising the boundaries of the former city of Willimantic, which excludes the geographical area of the district. The town has a budget surplus with respect to street lighting throughout the town that is roughly equal to the district’s expenditures for street lighting within the district from year to year. The town is willing to pay for the cost of street lighting incurred by the plaintiff within the district.

The court made the following factual findings and legal conclusions: (1) while the district taxpayers were being charged for street lighting by both the district and the town, this effectively higher tax rate was not caused by the town, but by the district itself; (2) the town was willing to pay for the district’s street lighting but the district has refused to allow it to do so; (3) before the district was created on April 14, 1981, and the town was consolidated with the city of Willimantic, the geographical area comprising the district was controlled by the town; (4) before the district was created the town had the primary responsibility to provide street lighting services to the residents in the district area; (5) this power rested in the town by the terms of the consolidation ordinance which provided that the consolidated town “shall have all the powers previously granted to the Town of Windham and the City of Willimantic, and all additional powers conferred upon municipalities by the Connecticut General Statutes, as amended from time to time”; (6) the primary responsibility for providing street lighting to the residents of the district lies with the consolidated town; and (7) the town is granted, under General Statutes § 7-148 (c) (4) (F), the power to provide for lighting the streets, highways and other public places of the municipality and for the care and preservation of public lamps, lamp posts and fixtures.

The court concluded that the result of a holding that the town had no power to tax the district residents for street lights would be “potential anarchy” in that a neighborhood could segregate itself from the rest of the town and decide that it wanted separate police protection and fire protection to the exclusion of the town providing such services. Such a result, it posited, would require an abdication by the town of its responsibility to provide essential services to town residents. The court stated that a special service district may provide greater service than the municipality is providing but cannot exclude a town from providing a specific service in the district where the town specifically has this power by virtue of its charter and the General Statutes. The court concluded that the town had the power to tax the residents for street lighting. The court lastly found no due process violation nor impermissible dual taxation under the circumstances.

The plaintiff district has appealed from the judgment for the defendant, claiming that the court erred in: (1) concluding that the town has the power to tax the residents of the district for street lighting when the taxation and provision of such services is otherwise provided for in the duly organized taxing district; and (2) concluding that the taxation by the town of the residents of the district for services not supplied nor paid for by the town does not constitute the deprivation of property without due process of law. We find no error.

The district’s first argument comes down to its claim of preemption of the right to provide street lighting after the district was organized under General Statutes § 7-325. It bases its right to do so on the district’s purpose, “to light streets,” described in General Statutes § 7-326.*

The district argues that its power to light streets may be terminated only by consolidation of the district with another unit of government pursuant to General Statutes § 7-195 or by termination of the district pursuant to General Statutes § 7-329. This argument sidesteps the town’s position. The town does not claim that the district lacks any of its statutory powers. The only issue is whether, when the town is willing and able to provide a certain service, the district may provide and tax for that same service and claim that the town cannot legally tax the district residents for such service. The parties do not claim that the district is presently exercising any of its powers other than lighting streets.

The district claims that the last sentence of § 7-326 supports its position. We conclude, however, that the provision that “[a]ny district may contract with a town, city, borough or other district for carrying out any of the purposes for which such district was established” is a catchall general power that sheds no light on the issue in this case.

The district further relies on the provision in § 7-326 that any zoning and planning commission or board created under that section shall be dissolved upon adoption by the town of competing regulations, and that any building regulations, similarly adopted pursuant to that section, shall be superseded upon adoption by the town of such regulations. The district claims that these specific exclusions of district powers evince a legislative intent that other district powers preclude town powers over the same subject. We are unpersuaded. The extinguishment of the district’s powers 'under § 7-326 occurs in the event that the town adopts similar regulations after the districts have entered the field. In such a situation, conflict between competing powers never comes into being. This specific statutory scheme has no bearing on the situation in this case, where the town had the power to provide street lights in the district’s area before the district was created.

The district relies principally on two Connecticut cases. Watertown v. Watertown Fire District, 28 Conn. Sup. 413, 265 A.2d 496 (1968), was a declaratory judgment action concerning the extent to which the town, having enacted a charter under the Home Rule Act, was subject to powers conferred upon two defendant fire districts by a series of special acts of the legislature. That case also involved a conflict subsequent to the adoption of a town charter under the Home Rule Act. In a series of rulings concerning various aspects of overlapping authority contained in the charter and the special acts, the court ruled that the town could not claim certain powers that the districts were exercising, when those powers had been specially granted to the districts by special act. The town points out that the court relied specifically on the rule that a special act is not affected by a general statute unless the intent to repeal or alter is clearly manifest. Id., 419, 421. Watertown is clearly inapposite to this case where a district created by a special act is not involved.

The district stresses Watertown’s dictum that “[t]he plaintiff is obviously seeking a consolidation of the [defendant districts] with itself . . . .” Id., 421. The district argues that, like the Watertown case, this case involves a “thinly veiled attempt at consolidation without compliance with statutory requirements.” In Watertown, the court concluded that General Statutes §§ 7-195 through 7-201 govern any attempt at consolidation of the districts with the town. We do not disagree with this conclusion. We do not perceive, however, in this case any attempt by the town to achieve a “backdoor” consolidation with the district. The furnishing of fire and police protection services, among the principal objects of most local governments, was addressed in the consolidation charter by the creation of the Windham Service District and the Willimantic Service District. The town’s action to furnish street lighting in the district appears to have two principal purposes: (1) to tidy up loose ends arising out of the concept and reality of consolidation; and (2) to establish the town’s role, in general, as the primary provider of public services in the consolidated town. We note that, in keeping with our analysis of the extent of the district’s power to provide street lighting, this power may be utilized to supplement the lighting provided by the town. Further, the other powers of the district, not now being used, may also serve their original purposes. Only time will tell whether this decision will cause the euthanasia of the district.

The district relies most heavily on the case of Pepin v. Danbury, 171 Conn. 74, 368 A.2d 88 (1976). In Pepin, the plaintiffs, who were residents and taxpayers of Dan-bury, sought a declaratory judgment to determine the validity of a tax formula contained in the charter of the consolidated city and town of Danbury. The consolidation ordinance established three tax districts. All property was included in the Basic Tax District, from which 85 percent of local tax revenue was collected. Those properties connected to either city water or sewer facilities were placed in Urban Tax District No. 1 and further taxed a sum equal to 7.5 percent of the total city revenues. Those properties connected to both city water and sewer facilities were included in Urban Tax District No. 2 and assessed an additional 7.5 percent of city revenue. Id., 76. The court found that those taxpayers connected to one service were assessed a rate 16 percent higher than those not so connected, and those with both services were assessed 40 percent higher than those taxpayers with neither service. Id., 78. On the defendant’s appeal from the court’s judgment that these differential tax rates were invalid, we concurred with the court’s conclusion that the defendant acted in excess of its statutory authority when it charged the taxpayers of the two additional districts an amount in excess of “the cost of furnishing such service” pursuant to General Statutes § 7-198. Id., 88. The town argues that Pepin is inapposite to this case since the town budgets for lighting at the actual cost thereof. Taxpayers of the district were not taxed at a different rate for lighting services than were other taxpayers in the town.

We agree with the trial court’s reasoning that Pepin does not support the district’s position. The court emphasized that there was one basic tax rate being used with respect to street lighting for all taxpayers of the town. And, as previously noted, the court concluded that, unlike Pepin, the higher tax rate charged to taxpayers in the district was caused by the district itself.

We come, then, to the underlying question of the relationship between the Home Rule Act and chapter 105, and the resulting claimed inconsistency between them because of overlapping powers. The court must use common sense in construing statutes and must assume that a reasonable and rational result was intended by the promulgating legislature. State v. Campbell, 180 Conn. 557, 564, 429 A.2d 960 (1980). If a court can by any fair interpretation find a reasonable field of operation for two allegedly inconsistent statutes, without destroying or preventing their evident meaning and intent, it is the duty of the court to do so. Knights of Columbus Council v. Mulcahy, 154 Conn. 583, 590, 227 A.2d 413 (1967); Shanley v. Jankura, 144 Conn. 694, 702, 137 A.2d 536 (1957). In addition, “ 'when two statutes relate to the same subject matter every effort should be made to find a reasonable field for the operation of both statutes. . . [and] where there is a reasonable field of operation for each statute which does not impinge on the domain of the other, it is the court’s duty to give them concurrent effect.’ ” In re Juvenile Appeal (85-BC), 195 Conn. 344, 365, 488 A.2d 790 (1985). The legislature is presumed to be aware and to have knowledge of all existing statutes and the effect which its own action or nonaction may have on them. Miller v. Eighth Utilities District, 179 Conn. 589, 593-94, 427 A.2d 425 (1980).

Neither party has cited any case or other authority concerning the principal issue in this case, nor have we discovered any directly on point. We will, therefore, look to the fundamental purposes of the Home Rule Act and chapter 105 and to the historical matrix of local governmental functions in Connecticut that gave rise to these statutes. The extensive legislative history of the basic Home Rule Act, Public Acts 1957, No. 695, furnishes no guidance since it was not concerned with the relationship between municipalities and chapter 105 districts but rather with the reconciliation of the state’s power of governance through the general assembly with certain historically claimed local rights of self-government.

This court has defined the general purpose of the act. “The purpose ... of Connecticut’s Home Rule Act is clearly twofold: to relieve the General Assembly of the burdensome task of handling and enacting special legislation of local municipal concern and to enable a municipality to draft and adopt a home rule charter or ordinance which shall constitute the organic law of the city, superseding its existing charter and any inconsistent special acts. General Statutes § 7-188; Sloane v. Waterbury, 150 Conn. 24, 26-27,183 A.2d 839 (1962); State ex rel. Sloane v. Reidy, 152 Conn. 419, 209 A.2d 674 (1965); Shalvoy v. Curran, 393 F.2d 55, 59 (2d Cir. 1968); see Littlefield, ‘Municipal Home Rule— Connecticut’s Mature Approach,’ 37 Conn. B.J. 390, 402 (1963); 56 Am. Jur. 2d, Municipal Corporations § 126; 62 C.J.S., Municipal Corporations § 124. The rationale of the act, simply stated, is that issues of local concern are most logically answered locally, pursuant to a home rule charter, exclusive of the provisions of the General Statutes.” Caulfield v. Noble, 178 Conn. 81, 85-86, 420 A.2d 1160 (1979).

Special tax districts had their genesis in 1893 in “An Act relating to Organization of Districts for Extinguishing Fires and other Purposes.” Public Acts 1893, c. LVII. The rationale behind the creation of such districts fairly leaps off of the page of the statutes: to provide for specialized services in outlying areas of a town not contained within the territorial limits of any city or borough within such town. This provision, excluding such organized units of local government from the coverage of a tax district, has been in all the tax district statutes since 1893, despite frequent changes through the years expanding the powers and scope of a district’s authority. From the inception of such districts their purpose has been supplemental and secondary to the jurisdiction and services of the primary local government. If the local government was a town only, such a district could be located anywhere in the town. But, if there was a city or borough in the town, a district’s jurisdiction could not overlap such unit’s service area.

No statute in Connecticut has ever authorized general governmental powers for districts. An examination of the controlling statutes shows that a district’s powers are very carefully circumscribed so as to include only those powers necessary to carry out the special service involved in any particular district. We note further that chapter 105 includes no provision that the authorized powers to provide services included therein are exclusive so as to deprive the municipality of its right to provide such services.

Looking at the issue broadly, we conclude that the primary responsibility for overall local government lies with the municipality. “The town charter, whether adopted by special act of the General Assembly or, as in this case, under the Home Rule Act; General Statutes § 7-188; constitutes the organic law of the municipality. Caulfield v. Noble, [supra, 81]; Bredice v. Norwalk, 152 Conn. 287, 292, 206 A.2d 433 (1964). ‘It is well established that a [town’s] charter is the fountainhead of municipal powers. State ex rel. Raslavsky v. Bonvouloir, 167 Conn. 357, 362, 355 A.2d 275 (1974).’ ” West Hartford Taxpayers Assn., Inc. v. Streeter, 190 Conn. 736, 742, 462 A.2d 379 (1983). As a matter of public policy the district has adduced no good reason why the primary unit of local government should not continue to have the power to provide for an existing street light system. Additionally, we conclude that to allow chapter 105 districts to decide which separate and competing services they wish to provide and tax for to the exclusion of town-provided services, may tend to foster the balkanization of local municipal government which the Home Rule Act and chapter 105, when read together harmoniously, were designed to avoid.

We conclude, therefore, that special tax districts are authorized to supply services where lacking, or to augment them when they are already provided by the municipality, but cannot displace or preempt the town’s primary authorized power to provide and tax for such services.

The district’s second issue on appeal is subsumed in the first. The district claims that the town’s taxing of the district residents for services not supplied or paid for by the town constitutes a taking of property without due process of law in violation of article first, § 8, of the Connecticut constitution and § 1 of the fourteenth amendment to the United States constitution. The common meaning attributed to those due process provisions allow for these questions to be treated as one. Roundhouse Construction Corporation v. Telesco Masons Supplies Co., 168 Conn. 371, 374, 362 A.2d 778 (1975), vacated, 423 U.S. 809, 96 S. Ct. 20, 46 L. Ed. 2d 29 (1975), on remand, 170 Conn. 155, 365 A.2d 393, cert. denied, 429 U.S. 889, 97 S. Ct. 246, 50 L. Ed. 2d 172 (1976).

The district’s argument falls of its own weight. Since we have concluded that the town has the power to provide these services, it necessarily follows that it is the district that is causing any enhanced tax burden to the district residents. The due process clause applies to a taxing statute “ ‘only if the act be so arbitrary as to compel the conclusion that it does not involve an exertion of the taxing power, but constitutes, in substance and effect, the direct exertion of a different and forbidden power, as, for example, the confiscation of property.’ ” Miller v. Heffernan, 173 Conn. 506, 516-17, 378 A.2d 572 (1977), appeal dismissed, 434 U.S. 1057, 98 S. Ct. 1226, 55 L. Ed. 2d 758 (1978), quoting A. Magnano Co. v. Hamilton, 292 U.S. 40, 44, 54 S. Ct. 599, 78 L. Ed. 1109 (1934). Further, the due process clause does not require that the tax being levied be directly related to the specific benefits received by the taxpayer. Miller v. Heffernan, supra, 517.

“ ‘[T]he system of taxation has not yet been devised which will return precisely the same measure of benefit to each taxpayer or class of taxpayers, in proportion to payment made . . . .’ ” Id., quoting Dane v. Jackson, 256 U.S. 589, 598-99, 41 S. Ct. 566, 65 L. Ed. 1107 (1921). The due process clause is violated only if the tax imposed constitutes a “ ‘flagrant and palpable inequality between the burden imposed and the benefit received . . . Miller v. Heffernan, supra, quoting Dane v. Jackson, supra.

The town has consistently offered to provide and pay for street lighting in the district and has specifically budgeted funds for such purposes. Under the circumstances of this case there is not only no flagrant and palpable inequity on the town’s part—there is no inequity whatsoever.

There is no error.

In this opinion Peters, C. J., Shea and Callahan, Js., concurred.

Arthur H. Healey, J.,

dissenting. I respectfully dissent. I cannot agree, given the facts in this case, with the majority’s basic conclusion “that special tax districts [here the Windham First Taxing District (district)] are authorized to supply services where lacking, or to augment them when they are all already provided by the municipality [here the consolidated town of Windham (town)], but are not to displace or preempt the town’s primary authorized power to provide and tax for such services.” With that disagreement, I need not go on to discuss the due process issue raised by the district.

There is no serious problem with the facts; it is with the legal conclusions of the trial court that the majority endorses that troubles me. No one appears to question the fact that both the town and the district are essentially creatures of statutes and have only those powers given to them, expressly or impliedly by statute, to accomplish the object of their statutory existence. See, e.g., State ex rel. Brush v. Sixth Taxing District, 104 Conn. 192, 198, 132 A. 561 (1926). Despite this valid legal existence, the majority and the trial court cast the district as an entity subordinate to the town in the attainment of one of the objects of the district’s incorporation, i.e., the furnishing of lighting within the district. No one says that the district is invalidly set up; no one could do so as chapter 105 of our General Statutes authorizes its being. Chapter 105, and specifically General Statutes § 7-326 in that chapter, provides that such a district may be established “for any or all of the following purposes” including “[t]o extinguish fires, to light streets . . . .” That statute also provides that “[a]ny district may contract with a town, city, borough or other district for carrying out any of the purposes for which such district was established.” It appears that while this district “may” so contract, even with the consolidated town, it does not desire to do so. The majority, like the trial court, without any citation of authority, determines that all the district can do is provide greater service than the municipality. The district, however, must, according to the majority and the trial court, yield because the town is the “primary provider” of the public services in the consolidated town. This, I submit, involves two thorny problems: (1) it acts effectively to overlook the existence of the district under chapter 105; and (2) it makes the town the “primary provider” in this conflict without explaining how the district, incorporated in 1981, must now become a secondary “non-provider” of the public services that it was legally authorized to furnish when the district was never consolidated in 1983 with the town pursuant to Home Rule Act (pursuant to General Statutes § 7-194 as the majority points out).

The trial court’s position was that the town’s “primary responsibility” for providing street lighting in the area now encompassed by the district “was not abdicated to the [district] when [the district] came into existence but rather was retained by the town prior to its consolidation . . . .’’It went on to say that “the fact the [district] came into existence before the consolidation . . . is irrelevant as to the issue of which governmental unit has the primary responsibility for providing street lighting to the residents of the [district].” Absent statutory language even suggesting this irrelevancy, this position causes me concern. I appreciate the desirability of harmonizing, if possible, seemingly conflicting statutes as well as achieving consolidation in accordance with prescribed procedures, but it seems to me that the majority’s analysis leading to its basic conclusion referred to proves too much. The chapter 105 district in this case was never included in the consolidation ordinance of 1983, so how does the town now have the legal power to be the “primary provider” of lighting services in the district? I submit that it does not.

It would appear that there is no quarrel that the district is empowered to levy taxes to defray the cost of furnishing services pursuant to powers it is specifically given under chapter 105. See Williams Bros. Mfg. Co. v. Naubuc Fire District, 92 Conn. 672, 104 A. 245 (1918). Since chapter 105 and its provisions have been in our statutes for many years, the legislature must be presumed to have been aware of its provisions in legislating on related matters such as the Home Rule Act. The legislature is presumed to act in view of existing relevant statutes to create one consistent body of law. Rustici v. Stonington, 174 Conn. 10, 13, 381 A.2d 532 (1977). Moreover, various provisions of chapter 105 have been amended recently, including the procedure for the termination of such a district. See General Statutes § 7-329.

I cannot accept the ratio decidendi of the majority as to how the town never abdicated its primary responsibility concerning lighting, despite the concededly valid existence of the district since 1981, even before the 1983 consolidation ordinance, in which the majority concedes that the district was not included. This leaves the power to tax for lighting in the district, in my view, with the district. Any doubt as to a municipality’s power to tax should be resolved against the existence of the power and in favor of the taxpayer. See Levin-Townsend Computer Corporation v. Hartford, 166 Conn. 405, 409, 349 A.2d 853 (1974); Low Stamford Corporation v. Stamford, 164 Conn. 178, 182, 319 A.2d 369 (1972); 14 E. McQuillin, Municipal Corporations (3d Ed. Rev.) § 38.07.1 appreciate the allusion to “balkanization” of local government in the majority opinion. I do not agree, however, that it is really a factor in this case, given the time sequence of the creation of the district and the consolidation ordinance. In the latter instance, the majority concedes that the district was not joined under the Home Rule Act as it could have been. On the other hand, we have said that “ ‘[i]f courts can by any fair interpretation find a reasonable field of operation for both statutes without destroying or perverting their evident meaning and intent, it is the duty of the courts to do so, thus reconciling them and according to them concurrent effect.’ ” 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); see 1 J. Sutherland, Statutory Construction (3d Ed.) § 2014. The majority, in effect, concludes in reconciling the relevant statutes, including the consolidation ordinance, that the district has no power to pay for furnishing lighting services although it legally was given the express power to furnish that service and collect taxes to pay for it. Courts cannot defeat an express legislative intent to accomplish a reconciliation between perceived repugnancies. See Sloane v. Waterbury, 150 Conn. 24, 29, 183 A.2d 839 (1962). This is happening in this case.

I respectfully dissent.

       General Statutes § 7-325 provides in pertinent part: “organization, boundary changes, annual report, (a) Upon the petition of twenty or more voters, as defined by section 7-6, of any town, not residing within the territorial limits of any city or borough in such town, specifying the limits of a proposed district for any or all of the purposes set forth in section 7-326, and not including within such limits any part of any city or borough in such town, the selectmen of such town shall call a meeting of the voters residing within such specified limits to act upon such petition, which meeting shall be held at such place within such town and such hour as the selectmen designate, within thirty days after such petition has been received by such selectmen. . . . Upon approval of such petition by two-thirds of the voters present at such meeting, the voters may name the district and, upon the vote of a majority of such voters, choose necessary officers therefor to hold office until the first annual meeting thereof; and the district shall thereupon be a body corporate and politic and have the powers, not inconsistent with the general statutes, in relation to the objects for which it was established, that are necessary for the accomplishment of such objects, including the power to lay and collect taxes.”

       “[General Statutes] Sec. 7-326. purposes. At such meeting, the voters may establish a district for any or all of the following purposes: To extinguish fires, to light streets, to plant and care for shade and ornamental trees, to construct and maintain roads, sidewalks, crosswalks, drains and sewers, to appoint and employ watchmen or police officers, to acquire, construct, maintain and regulate the use of recreational facilities, to plan, lay out, acquire, construct, reconstruct, repair, maintain, supervise and manage a flood or erosion control system, to plan, lay out, acquire, construct, maintain, operate and regulate the use of a community water system, to collect garbage, ashes and all other refuse matter in any portion of such district and provide for the disposal of such matter, to establish a zoning commission and a zoning board of appeals or a planning commission, or both, by adoption of chapter 124 or chapter 126, excluding sections 8-29 and' 8-30, or both chapters, as the case may be, which commissions or board shall be dissolved upon adoption by the town of subdivision or zoning regulations by the town planning or zoning commission; and to adopt building regulations, which regulations shall be superseded upon adoption by the town of building regulations. Any district may contract with a town, city, borough or other district for carrying out any of the purposes for which such district was established.”

       A joint stipulation of the parties dated August 12, 1986, states: “The Windham First Taxing District Charter provides that the District shall be established for the following purposes, in addition to that of providing fire protection:
      “(a) to light streets;
      “(b) to appoint or employ watchmen or police officers;
      “(c) to construct, regulate and maintain the use of recreational facilities;
      “(d) to establish a public library and to provide and maintain such suitable rooms or buildings as may be necessary for such library.”

       Each consolidated city and town, although it may use the title and status of city, also remains one of Connecticut’s 169 towns.

       Enacted substantially in its present form in Public Acts 1957, No. 465, the Home Rule Act is now contained in chapter 99, General Statutes §§ 7-187 through 7-201.

       Chapter 105, entitled “Fire, Sewer and Other Districts,” is now contained in General Statutes §§ 7-324 through 7-339Í.

       The legal and historical background of the Home Rule Act is exhaustively analyzed in J. Griffiths, “Connecticut Home Rule: The Judicial Resolution of State and Local Conflicts,” 4 U. Bridgeport L. Rev. 177 (1983).

       Public Acts 1893, chapter LVII, provides in pertinent part: “An Act relating to Organization of Districts for Extinguishing Fires and other Purposes. . . .
      “section 1. Upon the petition of ten or more legal votes of any town in this state not residing within the territorial limits of any city or borough in said town, specifying the limits of a proposed district to be organized under this act, and not including within said limits any part of any city or borough in said town, the selectmen of said town shall call a meeting of the legal voters residing within said specified limits, to act upon said petition ....
      “sec. 2. At such meeting the legal voters may establish the district for any or all of the following purposes, viz.: to extinguish fires, to sprinkle streets, to light streets, to plant and care for shade and ornamental trees; to construct and maintain sidewalks, crosswalks, drains, and sewers; to appoint and employ watchmen or police officers. They may give a name to the district and choose necessary officers therefor, to hold office until the first annual meeting thereof; and the district shall thereupon be a body corporate and politic, and have all the powers in relation to the objects for which it was established that are necessary for the accomplishment of said objects, including the power to lay and collect taxes.”

       General Statutes § 7-326 includes almost verbatim the first five broad categories of powers granted to districts by Public Acts 1893, chapter LVTI. The only omission from the original powers listed is the power “to sprinkle streets,” a reminder of a bygone era of dirt roads.


source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    Beverly Rosenfeld, Executrix (Estate of Dorothy R. Gold) v. Roslyn Frank et al. Beverly Rosenfeld v. Roslyn Frank et al.
    (13345)
    Peters, C. J., Healey, Shea, Callahan and Hull, Js.

      Argued May 10
    decision released August 9, 1988

      Linda M. Guliuzza, for the appellant (plaintiff in both capacities).

      Barbara S. Miller, for the appellees (defendant Bernice Goldbloom et al.).
   Callahan, J.

This is an action involving the construction of a will and codicil executed by Dorothy R. Gold (testatrix) as it relates to the distribution of certain shares of stock devised by the testatrix to her grandchildren. The plaintiff, daughter of the testatrix, is an executrix and residuary legatee of the testatrix’s will dated December 13,1973. The defendants, Roslyn Frank and Bernice Goldbloom, are also daughters of the testatrix and are executrices and residuary legatees. The defendants, Susan Goldbloom and Michael Goldbloom (defendant grandchildren), are two of eight grandchildren of the testatrix to whom she bequeathed stock.

The plaintiff filed this appeal from a judgment of the trial court, wherein the court found that, by the terms of the will, the grandchildren were specific legatees and therefore entitled to the additional shares of stock resulting from stock splits occurring after the execution of the will, as well as the original number of shares bequeathed to them in the testatrix’s will. The principal issue raised by the plaintiff on appeal is whether the trial court erred in failing to consider the legal effect of the execution of a codicil by the testatrix after the number of shares of stock she owned and bequeathed in her will increased due to stock splits.

The facts relevant on appeal were stipulated by the parties as follows: On June 16,1983, the testatrix died a resident of Bridgeport. Both her last will and testament executed December 13,1973, and a codicil thereto executed December 17,1979, were admitted to probate by the Probate Court for the district of Bridgeport. The testatrix’s daughters, Beverly Rosenfeld, Bernice Goldbloom and Roslyn Frank, were appointed executrices of the estate by the Probate Court in accordance with article four of the testatrix’s will.

The will contains five articles. Relevant to the present appeal is article three which makes bequests of stock to each of the testatrix’s eight grandchildren. The article is divided into sections (a) through (h), each of which names a single grandchild as the legatee of the stock owned by the testatrix in one of eight corporations. In contention in the present case are sections (d) and (g) of article three which state as follows: “I give, devise and bequeath the following to my grandchildren as herein set forth .... (d) To my granddaughter, Susan Goldbloom, 180 shares of The Southern Connecticut Gas Company stock .... (g) To my grandson, Michael Goldbloom, 159 shares of Texas Gas Transmission stock . . . .”

When the testatrix executed her will she owned the exact number of shares she had listed in each section of article three. Subsequent to the execution of the will and prior to the execution of the codicil, however, changes occurred in the corporate structure of the companies whose stock was owned by the testatrix. In particular, in June, 1974, the stock in Southern Connecticut Gas Company, which was bequeathed to Susan, split three for two, and the corporation also subsequently changed its name to Connecticut Energy Corporation. In July, 1979, the stock of Texas Gas Transmission, which was bequeathed to Michael, split two for one. Thus, when the testatrix executed the codicil on December 17, 1979, she owned 270 shares of Connecticut Energy Corporation and 318 shares of Texas Gas Transmission. The number of shares the testatrix owned in these two corporations remained the same until her death. The codicil executed on December 17,1979, made no reference to the additional shares in either corporation resulting from the stock splits. Rather, initially it revoked an unrelated provision concerning real property in article two of the will and substituted a paragraph not in issue in this case. Article two of the codicil, however, reads: “In all other respects, I ratify and confirm and validate my Last Will and Testament of December 13,1973, except as altered by this Codicil.”

On October 10,1984, the Probate Court determined that the additional shares resulting from the stock split passed with the original shares bequeathed to the grandchildren and ordered that the executrices “execute stock powers.” The plaintiff appealed from this order and also filed suit in the Superior Court asking for a construction of the will. Since the parties and the issues were the same, the will construction suit and the appeal from the order of the Probate Court were, upon the defendants’ motion, consolidated for trial. The question raised in the trial court was whether Susan and Michael, the defendant grandchildren, were entitled to receive 270 shares of Connecticut Energy Corporation stock and 318 shares of Texas Gas Transmission stock respectively, the number of shares owned by the testatrix at the time of her death, rather than the number originally bequeathed to them in the will. The trial court reviewed the case de novo and upheld the decision of the Probate Court in favor of the defendants. The court held that under the will the grandchildren were specific legatees, and therefore, entitled to the additional shares resulting from the stock split over and above the amount stated in the will. The plaintiff thereafter filed an appeal in the Appellate Court which was transferred to this court pursuant to Practice Book § 4023. We find no error.

The principal claim raised by the plaintiff on appeal is that the trial court erred in concluding that the defendant grandchildren were entitled to the shares of stock resulting from the stock splits because the court failed to consider the legal effect of the codicil executed after the stock had split. The gravamen of the plaintiff’s claim is that the codicil, which makes no provision for the increase in shares resulting from the splits, evinces a testamentary intent by the testatrix to limit the grandchildren’s bequests of shares of stock to the number stated in the will. The plaintiff bases her claim on the fact that the codicil has the effect of republishing the will, and thus, the testatrix’s testamentary intent must be viewed exclusively from the date of its execution. According to the plaintiff, when the testatrix executed the codicil she presumably reviewed her entire estate, including the increase in shares resulting from the stock split, and her failure to make provision for the increased number of shares in the codicil is conclusive evidence that she intended to bequeath only the number of shares specifically stated in her will. We disagree.

Generally, execution of a codicil operates as a republication of a will. First National Bank & Trust Co. v. Baker, 124 Conn. 577, 583, 1 A.2d 283 (1938); Griffith v. Adams, 106 Conn. 19, 32, 137 A. 20 (1927); Carpenter v. Perkins, 83 Conn. 11, 18, 74 A. 1062 (1910); Shey’s Appeal, 73 Conn. 122, 124, 46 A. 832 (1900); Giddings v. Giddings, 65 Conn. 149, 160, 32 A. 334 (1894); 79 Am. Jur. 2d, Wills § 696. While republication acts to treat the will as if it had been “rewritten, re-executed, and republished at the date of the codicil”; Griffith v. Adams, supra, quoting Shey’s Appeal, supra; Carpenter v. Perkins, supra; Giddings v. Giddings, supra; we have recognized that this principle is subject to the limitation that the intention of the testatrix must not be defeated by its application. First National Bank & Trust Co. v. Baker, supra; see also 79 Am. Jur. 2d, Wills § 696. In First National Bank & Trust Co. v. Baker, supra, this court held that the republication of a will and codicil by a subsequent codicil did not have the effect of converting a bequest to a person named therein and described as a nephew, who had died after the execution of the will and a codicil, but prior to the testatrix’s execution of a final codicil, into a bequest to the nephew’s son who bore the same name.

The nephew’s son in First National Bank & Trust Co. argued that, although the testatrix’s final codicil failed to state that he was to take the bequest originally devised to his deceased father, the bequest, nonetheless, belonged to him because the final codicil had the effect of republishing the will and earlier codicil, thereby making a new will on the date of its execution. Since the will was, in effect, remade after his father’s death, the son asserted that the testatrix, who is presumed to have wanted to avoid a nugatory gift, intended the bequest for him. Rejecting the son’s argument, this court stated that while republication of the will and codicil by the final codicil was in effect the making of a new will, “[tjhat does not mean, however, that in determining the construction of the instrument the development of the testamentary intent through the will and the codicils and the circumstances surrounding their execution are to be disregarded and the whole will read as though it were all originally made at the date of the codicil. ‘From a will and its several codicils, like a statute with its later amendments, the maker’s full intention is to be gathered.’ ” Id., 583, quoting Giddings v. Giddings, supra. Looking to both the language of the will and extrinsic circumstances surrounding the execution of the codicil, the court rejected the nephew’s son’s argument that, solely because the testatrix had executed a codicil after his father’s death, he was the intended beneficiary. Particularly significant was evidence of the fact that the testatrix, prior to the execution of the final codicil, recognized that changes to her will would have to be made in order to bequeath the gift originally intended for the deceased father to his son, but she, nonetheless, failed to make the changes in the final codicil when she had the opportunity.

Analysis of Griffith v. Adams, supra, which is also cited by the plaintiff for the proposition that the testatrix’s intent must be determined solely from the facts as they existed as of the date of the execution of the codicil, shows that our holding was, in fact, based in part on the language of the will and the intention of the testator expressed therein. In Griffith, the testator had made a bequest of stock in three different corporations. After the will was executed two of the corporations declared common stock dividends. The third corporation, of which the testator was a member of the board of directors, recommended a preferred stock dividend. Prior to stockholder authorization of the preferred stock dividend, the testator executed a codicil to his will in which he gave to each specific legatee of stock in the third corporation a proportionate share of the new preferred stock. The codicil did not mention the dividends declared by the other two corporations in which the testator had bequeathed stock. On the basis of the fact that the codicil provided for the dividends of the third corporation and failed to mention the dividends paid by the other two corporations, we held that the intention of the testator on the date he executed the codicil was to limit the shares bequeathed to the legatees of the first two corporations to the number specified in his will. In so holding, however, we stated that “[s]ince the intention of the testator to give the specific legatees any share in subsequently declared dividends [in the first two corporations] cannot be found in the will, its republication reaffirms the intention expressed in it; it does not indicate a contrary intention. ” (Emphasis added.) Id., 33. This language clearly indicates that had there been evidence in the will showing that the testator in Griffith intended to bequeath the stock dividends of the first two corporations to the legatees we would have held that they were entitled to receive them.

Moreover, in New York Trust Co. v. Doubleday, 144 Conn. 134, 128 A.2d 192 (1956), our holding that the testator intended to limit the number of shares bequeathed to the amount originally stated in the will was based on both the language of the will and a codicil that, like the codicil in Griffith, made changes in the bequests of some stocks that had split after the execution of the will but did not mention the stocks in issue that had also experienced splits.

Unlike the wills and codicils in the cases discussed, the will and codicil in this case do not indicate an intention on the part of the testatrix to limit the number of shares bequeathed to the legatees to the number of shares originally bequeathed in her will. Rather, the codicil in the present case, as distinguished from the codicils in both Griffith v. Adams, supra, and New York Trust Co. v. Doubleday, supra, is silent as to the testatrix’s stockholdings; it does not bequeath additional shares of stock resulting from a stock split in one corporation while failing to do so with respect to the stock of other corporations whose shares had also subsequently increased in number due to a split. The only change the testatrix made to her will by virtue of the codicil involved the unrelated devise of real property. Accordingly, the intention of the testatrix to limit the bequests of stock made to her grandchildren to the number of shares stated in her will cannot be ascertained from the codicil.

Moreover, contrary to First National Bank & Trust Co. v. Baker, supra, there is no extrinsic evidence on the record in the present case indicating that the testatrix felt it necessary to make further changes in her will in order to bequeath the additional shares of stock to her grandchildren and yet failed to do so when she executed the codicil. Unable to find an intention to limit the shares of stock to the amounts originally stated in the will either in the codicil itself or in the circumstances surrounding its execution, we turn to the testatrix’s will to discern her intent.

There are two factors in article three of the testatrix’s will that lead us to conclude that she intended the defendant grandchildren to receive the additional shares of stock resulting from the stock split as well as the number originally bequeathed in her will. First, based on sections (a) through (h) of article three of her will, the testatrix clearly intended that upon her death each one of her eight grandchildren was to receive her total ownership interest in the particular corporation whose stock was bequeathed to them. This can be deduced from the fact that the will gave each grandchild all the stock the testatrix owned in a particular corporation. Susan Goldbloom was to receive all the stock the testatrix owned in Connecticut Energy Corporation, Michael Goldbloom was to receive all the stock owned by the testatrix in Texas Gas Transmission; and by other provisions each of the remaining grandchildren was to receive all the stock owned by the testatrix in other specified corporations. By finding that the defendant grandchildren are entitled to the additional shares of stock resulting from the stock splits, we are merely adhering to the testatrix’s obvious intent as expressed in her will to devise her total interest in each of the corporations in which she held stock to each of her grandchildren.

In addition to the fact that sections (a) through (h) of article three of the testatrix’s will bequeath to each grandchild the testatrix’s complete interest in a particular corporation, that article also provides as follows: “In the event that prior to my death I have divested myself of any of the above shares of stock, I direct that my Executrices hereinafter named give unto my said grandson or granddaughter, as the case may be, the amount equivalent to the value of said shares had they been held in my estate at the time of my death. ” (Emphasis added.) By providing that, even if she had divested herself of the bequeathed shares prior to her death, her grandchildren were, nevertheless, to receive an amount equivalent to the value of the stock at the time of her death, the testatrix made it quite clear that the grandchildren were to receive any accretion to the bequeathed shares. As the plaintiff herself conceded at oral argument, the language of this clause is very persuasive that the testatrix intended that any additional shares resulting from a stock split pass to her grandchildren.

Moreover, this clause operates as an anti-ademption clause indicating that the testatrix intended to make a specific rather than a general bequest. “ ‘The fundamental distinction between general and specific legacies is that the former may be satisfied out of the general assets of the testator’s estate without regard to any particular fund, thing, or things, while the latter are gifts of particular specified things, or of a specific fund or a defined portion thereof.’ ” Burnham v. Hayford, 141 Conn. 96, 102, 104 A.2d 217 (1954), quoting Weed v. Hoge, 85 Conn. 490, 494, 83 A. 636 (1912); Brainerd v. Cowdrey, 16 Conn. 1, 6 (1843); 57 Am. Jur. 935, 936. Generally, the legatee of a specific bequest of shares of corporate stock, as distinguished from the legatee of a general bequest, is entitled to any accretions to the bequeathed shares which are received by the testatrix, as a result of a stock split, subsequent to the making of such bequest. See Fidelity Title & Trust Co. v. Young, 101 Conn. 359, 125 A. 871 (1924); annot., 46 A.L.R.3d 7, 24. The rationale behind this rule is that “[a] stock split in no way alters the substance of the [testatrix’s] total interest or rights in the corporation. . . . [It] is merely a dividing up of the outstanding shares of a corporation into a greater number of units without disturbing the stockholder’s original proportional participating interest in the corporation.” Egavian v. Egavian, 102 R.I. 740, 746, 232 A.2d 789 (1967), quoted in Bostwick v. Hurstel, 364 Mass. 282, 287, 304 N.E.2d 186 (1973); see also Fidelity Title & Trust Co. v. Young, supra, 368-69; Jacobs v. Button, 79 Conn. 360, 65 A. 150 (1907). Thus, because the gift merely changes in “name and form” but not in “substance,” the additional split shares should pass to the legatee designated to receive the original shares in order to give him or her the specific thing which the testatrix intended that he or she should have. See Fidelity Title & Trust Co. v. Young, supra; Jacobs v. Button, supra. If the legatee is not awarded the additional shares, the value of the specific bequest would be substantially reduced, contrary to the testatrix’s intent. Bostwick v. Hurstel, supra; In re Kirkwood, 6 Ohio App. 2d 146, 154, 216 N.E.2d 895 (1966). Consequently, if the testatrix in this case intended to make a specific bequest she would have presumed that any additional shares resulting from a stock split would pass with the original shares bequeathed in her will, thereby making it unnecessary for her to provide further for their disposition in her codicil.

In determining whether a bequest of stock in a named corporation is general or specific, there exists a presumption in favor of finding a general legacy. Fidelity Title & Trust Co. v. Young, supra, 364. “Two reasons are given for this [presumption]; to prevent an ademption in case the testator parts with the stock before his death, and to secure uniformity of contribution in case of a deficiency of assets.” Id., citingDryden v. Owings, 49 Md. 356 (1878); Ives v. Canby, 48 F. 718 (D. Del. 1891); Johnson v. Conover, 54 N.J. Eq. 333 (1896); Giddings v. Seward, 16 N.Y. 365 (1857); Perry v. Maxwell, 17 N.C. (2 Dev. Eq.) 488 (1834). When the reasons, however, behind the presumption do not exist and or “a contrary intent appears from the will”; Fidelity Title & Trust Co. v. Young, supra; the presumption will not apply. Thus, “a provision against ademption is held to be sufficient evidence of an intent to make a specific gift.” Id., citing Mowry, Petitioner, 16 R.I. 514 (1889); In re Foote, 39 Mass. (22 Pick.) 299 (1839). In this case, the clause in article three of the testatrix’s will is clearly a provision against ademption; even if during her life the testatrix had divested herself of any of the stock she had bequeathed to her grandchildren, the legacy would not lapse because article three entitles them to the value of the shares had they been held in her estate on the day she died.

Furthermore, to ascertain if the presumption is overcome by the testator’s intent to make a specific bequest only, “ ‘a very slight indication of an intention to give shares then in his ownership is enough to make the legacy specific . . . .’ ” Fidelity Title & Trust Co. v. Young, supra, 366, quoting Thayer v. Paulding, 200 Mass. 98, 101, 85 N.E. 868 (1908), quoted with approval in Gardner v. Viall, 36 R.I. 436, 443-44, 90 A. 760 (1914). We have previously indicated that where the testatrix bequeathes the exact amount of stock she owns in a corporation on the date she executes her will, that will suffice to indicate that she intended to make a specific bequest. Fidelity Trust & Title Co. v. Young, supra, 365, citing White v. Winchester, 23 Mass. (6 Pick.) 48 (1827). As already noted, the testatrix in the present case bequeathed the exact amount of stock she owned when she executed her will. This fact, in addition to the anti-ademption clause in the testatrix’s will, makes it clear that she intended to make a specific bequest and therefore the defendant grandchildren are entitled to the additional shares of stock resulting from the stock split. Fidelity Title & Trust Co. v. Young, supra.

Accordingly, we hold that the trial court did not err in concluding that the defendant grandchildren are entitled to the additional shares of stock, over and above the amount originally bequeathed in the testatrix’s will, that resulted from the stock splits. While a codicil has the effect of republishing a will, the testatrix’s intent is to be determined not only by the codicil, but also the language of the will and the circumstances surrounding the execution of the will and codicil. The facts in this case clearly show that the testatrix intended her grandchildren to have the shares of stock resulting from any stock split in addition to the shares originally bequeathed in the will.

There is no error.

In this opinion the other justices concurred.

       The fact that the Southern Connecticut Gas Company changed its name is not a point of contention between the parties.

       In January, 1983, Texas Gas Transmission changed its name to Texas Gas Corporation, and in May, 1983, became Texas Gas Resources Company. This change in name is not a point of contention between the parties.

       Following the testatrix’s death, further activity in the stocks in question occurred. Namely, in June, 1983, the board of directors of Texas Gas Resources declared a stock dividend. In September, 1983, the corporation merged and became a wholly owned subsidiary of CSX Corporation, exchanging each share of Texas Gas Resources for .684 shares of CSX. CSX shares split three for one in October, 1983. Finally, in May, 1984, Connecticut Energy Corporation declared a two for one stock split.

       In cases similar to the one at hand where there has been a stock split subsequent to the execution of a will, the courts have used two basic approaches to determine whether the additional shares resulting from a split pass to the legatee in addition.to the amount stated in the will. Some courts hold that whether the additional stock should pass to the legatee depends solely upon whether the bequest is specific or general. That was the approach used by this court in Fidelity Title & Trust Co. v. Young, 101 Conn. 359, 125 A. 871 (1924). See also In re Mandelle’s Estate, 252 Mich. 375, 233 N.W. 230 (1930); In re Estate of Leonard, 467 S.W.2d 84 (Mo. 1971); Shriners Hospitals for Crippled Children v. Emrie, 347 S.W.2d 198 (Mo. 1961); Chase National Bank v. Deichmiller, 107 N.J. Eq. 379, 152 A. 697 (1930); In re Kirkwood, 6 Ohio App. 2d 146, 216 N.E.2d 895 (1966); Clegg v. Lippold, 68 Ohio L. Abs. 590, 123 N.E.2d 549 (1951); Fisher v. Paine, 210 Or. 429, 311 P.2d 438 (1957); Warner v. Baylor, 204 Va. 867, 134 S.E.2d 263 (1964); annot., 46 A.L.R.3d 7. An increasing number of courts, however, have departed from the older “specific-general bequest” approach, and instead base their holdings on the perceived intention of the testator with respect to the split shares. See Estate of Helfman, 193 Cal. App. 2d 652, 14 Cal. Reptr. 482 (1961); In re Vail’s Estate, 67 So. 2d 665 (Fla. 1953); Allen v. National Bank of Austin, 19 Ill. App. 2d 149, 153 N.E.2d 260 (1958); Bostwick v. Hurstel, 364 Mass. 282, 304 N.E.2d 186 (1973); In re Harvey Estate, 110 N.H. 484, 272 A.2d 603 (1970); In re Doonan Estate, 110 N.H. 157, 262 A.2d 281 (1970); Egavian v. Egavian, 102 R.I. 740, 232 A.2d 789 (1967); Estate of Barslow, 128 Vt. 192, 195, 260 A.2d 374 (1969); annot., 46 A.L.R.3d 7.
      This court, in New York Trust Co. v. Doubleday, 144 Conn. 134, 128 A.2d 192 (1956), looked only to the testator’s intent to determine whether the additional shares of stock resulting from a stock split were to pass to the legatees. While the “specific-general bequest” approach was not used, we did not expressly reject that approach. It is not necessary for us to adopt or reject either approach in the present case as the additional shares of stock would pass to the original legatees regardless of which approach is used. The fact that the testatrix intended to make a specific bequest does, however, bolster our finding that the testatrix intended the shares resulting from the stock split to pass to her grandchildren in addition to the shares originally bequeathed in her will. Thus, the plaintiffs contention, that a determination of whether the stock bequest is specific or general is “irrelevant” is incorrect.

       Historically, stock dividends have been treated like cash dividends. Therefore, unlike shares resulting from a stock split, stock dividends were considered to increase the stockholder’s proportional share in a corporation and were not considered to be part of a specific legacy. In Griffith v. Adams, 106 Conn. 19, 25, 137 A. 20 (1927), we stated that “income and dividends, which accrue prior to the decease of the testator belong to him, and do not either become a part of the specific legacy or belong to the specific legatee, unless a contrary intention is manifest in the will or codicil.” Accord Fidelity Title & Trust Co. v. Young, 101 Conn. 359, 125 A. 871 (1924); see annot., 46 A.L.R.3d 7, 14, 69-78. Thus, although the legacy in Griffith was a specific bequest, we held that the legatees were not entitled to stock dividends accruing after the testator’s will had been executed. But see annot., 46 A.L.R.3d 7, 14, 65-69 (some courts have abandoned the historic treatment of stock dividends as cash dividends and have allowed them to pass to the legatee because, like an increase in shares resulting from a stock split, their issuance leaves the shareholder’s proportionate interest in the corporation undisturbed).

       Further, the defendant’s brief indicates that there is no deficiency of assets in the testatrix’s estate. This fact, in addition to the anti-ademption clause in the testatrix’s will, leave no reason to presume that a general legacy exists.


author: Arthur H. Healey, J.

text:
    William J. Morgan, Administrator (Estate of William T. Morgan), et al. v. Town of East Haven
    (13319)
    Peters, C. J., Healey, Callahan, Glass and Hull, Js.
    Argued May 31
    decision released August 16, 1988

      Kenneth A. Votre, for the appellants (plaintiffs).

      Robert M. Ward, for the appellee (defendant).
   Arthur H. Healey, J.

The issue on this appeal is whether an award made pursuant to General Statutes § 7-433C for a permanent partial disability is an asset of a deceased recipient’s estate. The plaintiffs, administrators of the recipients’ estates, appeal from the judgment of the trial court, Fracasse, J., denying a motion for execution on an award issued to William T. Morgan by compensation commissioner Darius Spain (commissioner). We find no error.

The basic facts are not disputed. On or about April 15, 1955, Morgan became a uniformed employee of the East Haven fire department. Prior to his employment, Morgan underwent a physical examination that did not reveal any evidence of hypertension or heart disease. By the time of his retirement from the fire department, Morgan had attained the rank of chief.

On December 31, 1981, while in the employ of the East Haven fire department, Morgan suffered “congestive heart failure with underlying cardiomyopathy.” Morgan retired from the fire department on January 15,1982, at a salary of $21,700 per year. His pension benefits from the town were $931.40 per month.

Subsequent to his heart failure, Morgan applied to the town of East Haven for benefits pursuant to General Statutes § 7-433c. After a hearing, the commissioner issued a finding and award on January 26,1983. On March 7 and 16,1983, the commissioner issued supplemental findings and awards. On May 25, 1983, the commissioner issued a final amended finding and award. The May 25 finding stated that, as a result of his heart disease, Morgan was entitled to benefits pursuant to § 7-433c, that he had a 75 percent permanent partial impairment of his cardiovascular system and that maximum medical improvement had been attained on January 22,1982. The commissioner ruled that Morgan was entitled to 585 weeks of benefits and that his compensation rate according to General Statutes § 31-308 was $278.33.

Morgan died on January 12, 1985, survived by his wife of forty-two years, Doris K. Morgan. Morgan had no minor children at the time of his death. After his death, the town of East Haven continued payments under the award to Doris K. Morgan until her death on March 2,1986. No payments were made after that date. The parties stipulated that upon Doris Morgan’s death there were no surviving dependents, but there were two surviving adult children. The defendant, the town of East Haven, had made a total payment of 233 weeks of benefits: twenty-three weeks at $203.37 per week; fifty-two weeks at $235.78 per week; 135 weeks at $278.33 per week; and forty-six weeks at $154.05 per week commuted to a lump sum of $7086.30.

Following the defendant’s cessation of payments, the fiduciaries of the estates of William and Doris Morgan applied for an execution, pursuant to General Statutes § 31-300. The trial court denied the motion for an execution and the plaintiffs appealed to the Appellate Court, whereupon, we transferred the case to this court pursuant to Practice Book § 4023.

The history of Connecticut’s statute providing benefits for police and fire personnel who suffer from hypertension or heart disease has been “rather tumultuous.” Plainville v. Travelers Indemnity Co., 178 Conn. 664, 667, 425 A.2d 131 (1979). The statute in its original form in 1951 established a rebuttable presumption that a uniformed firefighter of a paid municipal fire department who, prior to employment, passed a physical examination without evidence of hypertension or heart disease, and who later suffered from such disease, was presumed to have been injured in the line of duty for purposes of retirement benefits. General Statutes (Sup. 1951) § 175b. The statute was amended a number of times during the 1950s, including an amendment that made it applicable to paid police personnel as well as fire personnel. General Statutes (Sup. 1953) § 308c. In 1961, the legislature amended the provision to make express reference to chapter 568 dealing with workers’ compensation. The new hypertension and heart disease provision, General Statutes § 7-433b, provided a rebuttable presumption of injury in the line of duty for purposes of calculating benefits under chapter 568 for police and fire personnel. General Statutes (Sup. 1961) § 433b.

The real turmoil regarding the statute began in 1969, when the legislature amended the provision to include a conclusive presumption of injury in the line of duty for those police or fire personnel who suffered from hypertension or heart disease. General Statutes (Sup. 1969) § 7-433a. This court struck down the conclusive presumption as violative of due process under both the Connecticut and United States constitutions. Ducharme v. Putnam, 161 Conn. 135, 143, 285 A.2d 318 (1971).

Following the Ducharme decision, the legislature passed the current hypertension and heart disease provision which has been amended only once. To avoid the prior constitutional difficulties of the statute, the legislature did not include the benefits available under § 7-433c as compensation under the workers’ compensation scheme, chapter 568. Rather, the current provision is “separate and distinct legislation” from chapter 568. Bakelaar v. West Haven, 193 Conn. 59, 67, 475 A.2d 283 (1984). It provides “an outright bonus” to those police and fire personnel who qualify and thus is not a taking of property without due process of law. Grover v. Manchester, 168 Conn. 84, 88, 357 A.2d 922, appeal dismissed, 423 U.S. 805, 96 S. Ct. 14, 46 L. Ed. 2d 26 (1975). Chapter 568 is used only as a “procedural avenue” for administration of the benefits under § 7-433c so that a duplicate procedure would not have to be created solely for § 7-433c. Bakelaar v. West Haven, supra, 68, citing Plainville v. Travelers Indemnity Co., supra, 671-72.

General Statutes § 7-433c states that if a uniformed member of a paid municipal police or fire department, who successfully completed a physical examination prior to employment, suffers from hypertension or heart disease, on or off duty, and as a result dies or is disabled permanently or temporarily, partially or totally, “he or his dependents, as the case may be,” shall receive compensation from the municipal employer in accordance with the procedures of chapter 568 as if the employee were injured in the course of employment. Despite this language, the plaintiffs suggest that this case should not be controlled by statutory interpretation, and that benefits under § 7-433c should not be limited to the employee and that person’s dependents. They contend that once an award is made pursuant to § 7-433c, the rights of the parties should be controlled by an analysis of the award under principles of workers’ compensation law. We are not persuaded by this argument.

“We have consistently held that if a statute is clear and unambiguous, there is no room for construction.” Murray v. Lopes, 205 Conn. 27, 33, 529 A.2d 1302 (1987), citing State v. James, 197 Conn. 358, 363, 497 A.2d 402 (1985); State v. Smith, 194 Conn. 213, 222, 479 A.2d 814 (1984); Moscone v. Manson, 185 Conn. 124, 128, 440 A.2d 848 (1981); Zimmer v. Essex, 38 Conn. Sup. 419, 421, 449 A.2d 1053 (1982) (“[w]hen applying this provision [7-433c], we are bound to effectuate the intent of the legislature as expressed by the words contained within it; where the terms of the statute are, as here, unambiguous, we cannot speculate as to any unexpressed legislative intent”); see 2A J. Sutherland, Statutory Construction (4th Ed. Sands 1984) § 46.04. The language of § 7-433c is clear and unambiguous. The statute has mandatory language requiring that the municipal employer compensate the afflicted police or fire department employee and that person’s dependents. The clarity of this requirement is illustrated by the fact that the legislature referred to the employee or that person’s dependents three times in the compensation requirements of § 7-433c. The repetitive use of the term “dependents” indicates that the term was not used inadvertently but rather was used to delineate the class of the ultimate beneficiaries under § 7-433c. We cannot construe “dependents,” as used in this statute, to include the estates of the recipients. See J. Asselin, Connecticut Workers’ Compensation Practice Manual (1985) p. 26 (definition of dependents under workers’ compensation law [General Statutes § 31-306]). Thus, the clear and unambiguous language of the statute requires a municipal employer to provide compensation only to police and fire personnel who suffer from hypertension and heart disease and their dependents, not to the estates of the deceased recipients.

Even if we were persuaded that this issue could not be resolved solely by statutory interpretation, the alternative analysis proffered by the plaintiffs would not alter our result. The plaintiffs suggest that once the compensation is awarded under § 7-433c, there are vested property rights in that award that enable the deceased recipient’s estate to receive the benefits upon the recipient’s death. According to the plaintiffs, the award in this case vested in the recipients because it was a “specific” award, as opposed to a “special” award.

Specific benefits are benefits for the loss or loss of the use of specific body parts. See Everett v. Ingraham, 150 Conn. 153, 155, 186 A.2d 798 (1962). “These [specific] benefits . . . are not paid as compensation for loss of earning power but to compensate the injured employee for the incapacity through life because of the loss or loss of use of the body member in question.” J. Asselin, supra, p. 151. Under the workers’ compensation statute, compensation for injuries scheduled in General Statutes § 31-308 often is considered specific compensation. See id., p. 153; see also LaProvidenza v. State Employees’Retirement Commission, 178 Conn. 23, 29 n.2, 420 A.2d 905 (1979). The plaintiffs suggest that specific damages in this context are analogous to a tort judgment and, therefore, are liquidated. Thus, they contend that a recipient has a vested right in the award and the right to compensation passes as a liquidated sum to the estate.

On the other hand, a special award is one that is not compensation for the loss or loss of use of a body part, but is compensation for the inability to work as a result of the disability. See Bassett v. Stratford Lumber Co., 105 Conn. 297, 307, 135 A. 574 (1926) (Haines, J., concurring); J. Asselin, supra, p. 119 (the author refers to these benefits as “continuing wage benefits”). The plaintiffs, following the reasoning of Justice Haines in his concurring opinion in Bassett, suggest that special awards do not survive to the recipients’ estates. See Burns’s Case, 218 Mass. 8, 13, 105 N.E. 601 (1914).

The benefits provided under § 7-433c are more similar to special benefits than to specific benefits under the workers’ compensation statute. The preamble in § 7-433c provides that the section was designed to protect against “economic loss resulting from disability.” (Emphasis added.) Because the term “loss” is restricted to economic loss, it is fair to interpret this statute as limiting benefits calculated under chapter 568 as compensation for the loss of the ability to work. Again, resorting to accepted principles of statutory construction, we conclude that the failure to restrict the meaning of loss in such a way would create surplus language, something that we consistently have held must not be done. See Harris Data Communications, Inc. v. Heffernan, 183 Conn. 194, 197, 438 A.2d 1178 (1981); Winchester v. Connecticut State Board of Labor Relations, 175 Conn. 349, 355-56, 402 A.2d 332 (1978); State v. Briggs, 161 Conn. 283, 287, 287 A.2d 369 (1971).

The restriction of compensation obtained under § 7-433c to compensation for economic loss, such as loss of earning capacity, has been expressly noted by the Connecticut Appellate Court. The Appellate Court stated: “The purpose of General Statutes § 7-433c is to protect against a wage loss . . . .” Middletown v. Local 1073, 1 Conn. App. 58, 63, 467 A.2d 1258 (1983), cert. dismissed, 192 Conn. 803, 471 A.2d 244 (1984); see Revoir v. New Britain, 2 Conn. App. 255, 260-61, 477 A.2d 161 (1984) (“The purpose of § 7-433c is to protect firemen and policemen from economic loss. The measure of economic loss must be determined by the extent to which the claimant is precluded from rejoining the work force in his former capacity or any other reasonable occupation due to his disability.”). We previously have noted the sound reasoning of the Appellate Court in Middletown v. Local 1073, supra, on other issues relating to § 7-433c; see Maciejewski v. West Hartford, 194 Conn. 139, 151, 480 A.2d 519 (1984) (hypertension and heart disease benefits can be deducted as workers’ compensation benefits for purposes of establishing municipal pension benefits); and today we approve their stance on the issue of “economic loss.” To conclude, as the plaintiffs contend, that the estate of a deceased recipient, who leaves no dependents under § 7-433c, is entitled to the sum of unmatured weekly payments, carries the concept of “economic loss” under § 7-433c beyond the legislative purpose in enacting that statute. Therefore, benefits rendered pursuant to § 7-433c resemble special benefits under the workers’ compensation statute, and as such, do not pass to the estate of the recipient.

Even if we assume, arguendo, that the benefits in this case could be considered specific benefits, the estate of the recipient still is not entitled to the award in accordance with this court’s holding in Bassett v. Stratford Lumber Co., supra. Under this court’s reasoning in Forkas v. International Silver Co., 100 Conn. 417, 420, 423, 123 A. 831 (1924), a workers’ compensation award at a particular rate for a particular number of weeks was an unconditional promise to pay a particular amount that succeeded to the administratrix of the deceased recipient. This rationale, however, was overruled partially in Bassett, in which case we specifically held that any unmatured part of a weekly compensation scheme does not succeed to the estate of the employee. Bassett v. Stratford Lumber Co., supra, 305; see also Klapproth v. Turner, 156 Conn. 276, 279, 240 A.2d 886 (1968); Finkelstone v. Bridgeport Brass Co., 144 Conn. 470, 472, 134 A.2d 74 (1957).

In the instant case, the compensation commissioner awarded Morgan 585 weeks of benefits at the rate of $278.33 per week. Forty-six weeks of benefits at $154.05 per week were commuted at and paid in a lump sum of $7086.30. Had the commuted payment been outstanding at the time of Doris Morgan’s death, there is little dispute that the outstanding balance of the commuted amount would be due and payable to the estate. At the time of commutation, that portion of the compensation that was commuted became mature and, thus, immediately due and owing. See General Statutes § 31-302. The remainder of the award, however, still was payable weekly and remained unmatured. Therefore, the holding in Bassett controls, and the weekly compensation that remains unpaid does not have to be paid to the estate of the deceased recipient.

The plaintiffs also challenged the authority of the trial judge to deny their application for execution under General Statutes § 31-300. The plaintiffs cited Taneszio v. Palmieri, 3 Conn. Cir. Ct. 237, 238, 211 A.2d 840 (1965), for the proposition that issuance of an execution usually is ministerial and a duty of the court. This proposition is correct, but the trial court is not without power to review the application for an execution. The Circuit Court stated that “issuance of an execution is ordinarily a ministerial act. . . .” (Emphasis added.) Id. This must not be construed to mean that it is always a ministerial process. In fact, Connecticut’s trial courts have used their prerogative to intervene in the execution process. See, e.g., Goodlatte v. Liberty Mutual Ins. Co., 27 Conn. Sup. 382, 239 A.2d 546 (1967). We are persuaded, therefore, that the trial judge had the authority to deny the plaintiffs’ application for an execution.

Finally, on appeal, the plaintiffs raise equal protection and due process challenges, based on the federal and state constitutions, to the trial judge’s interpretation of § 7-433c and chapter 568. The claims were not raised at trial. We do not entertain questions of law that were not raised at trial unless there is a demonstration of exceptional circumstances. Practice Book § 4185; Hartford National Bank & Trust Co. v. Tucker, 195 Conn. 218, 219-20 n.1, 487 A.2d 528, cert. denied, 474 U.S. 845, 106 S. Ct. 135, 88 L. Ed. 2d 111 (1985); Rokus v. Bridgeport, 191 Conn. 62, 67, 463 A.2d 252 (1983); Burton v. Burton, 189 Conn. 129, 133 n.3, 454 A.2d 1282 (1983). There being no evidence of exceptional circumstances in this case, we refuse to consider the plaintiffs’ constitutional claims.

In summary, the trial court properly denied the application for an execution in this case. General Statutes § 7-433c does not require the payment of benefits to the estate of a deceased recipient; compensation is restricted to the employee and that person’s dependents.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 7-433c provides: “benefits for policemen or firemen DISABLED OR DEAD AS A RESULT OF HYPERTENSION OR HEART DISEASE. In recognition of the peculiar problems of uniformed members of paid fire departments and regular members of paid police departments, and in recognition of the unusual risks attendant upon these occupations, including an unusual high degree of susceptibility to heart disease and hypertension, and in recognition that the enactment of a statute which protects such fire department and police department members against economic loss resulting from disability or death caused by hypertension or heart disease would act as an inducement in attracting and securing persons for such employment, and in recognition, that the public interest and welfare will be promoted by providing such protection for such fire department and police department members, municipal employers shall provide compensation as follows: Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his emloyment and was suffered in the line of duty and within the scope of his employment, and from the municipal or state retirement system under which he is covered, he or his dependents, as the case may be, shall receive the same retirement or survivor benefits which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment. If successful passage of such a physical examination was, at the time of his employment, required as a condition for such employment, no proof or record of such examination shall be required as evidence in the maintenance of a claim under this section or under such municipal or state retirement systems. The benefits provided by this section shall be in lieu of any other benefits which such policeman or fireman or his dependents may be entitled to receive from his municipal employer under the provisions of chapter 568 or the municipal or state retirement system under which he is covered, except as provided by this section, as a result of any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability. As used in this section, the term ‘municipal employer’ shall have the same meaning and shall be defined as said term is defined in section 7-467.”

       William T. Morgan, to whom the award was originally made, died on January 12,1985. William J. Morgan is the administrator of his estate. Doris K. Morgan, the widow of William T. Morgan, died March 2, 1986. Betty G. Levy is the administrator of her estate.

       The language upon which the plaintiffs rely, a short clause in a lengthy statutory section, is as follows: “The court may issue execution upon any uncontested or final award of a commissioner in the same manner as in cases of judgments rendered in the superior court . . . .” General Statutes § 31-300.

       General Statutes (Sup. 1951) § 175b was part of chapter 48, entitled “Retirement of Municipal Employees.” General Statutes § 7-433c is part of chapter 113 which simply- is entitled “Municipal Employees.”

       In 1977, the legislature amended General Statutes § 7-433e to clarify that the benefits under this section are in lieu of other benefits under chapter 568 or a state or municipal retirement system. Public Acts 1977, No. 77-520, Si.

       See footnote 5, supra.

       General Statutes § 7-433c provides that the employee or the dependents “shall receive” compensation from the municipal employer. Absent express intent to the contrary, “shall” denotes a mandatory duty. Graham v. Zimmerman, 181 Conn. 367, 371, 435 A.2d 996 (1980).

       The parties stipulated that the adult children of the Morgans are not dependents, and it is not contended that the estates should be considered dependents.

       Our review of the legislative history of General Statutes § 7-433c did not disclose any information relating to compensation of dependents, although resort usually is not made to legislative history where the statute is clear and unambiguous on its face. Additionally, the predecessor statutes to § 7-433c did not contain a limitation of payments to employees and their dependents. It is logical to infer from the inclusion of “dependents” in the current statute that the legislature intended to restrict the benefits that were available under the previous statute. To do otherwise would make the word “dependents” mere surplusage and such an interpretation has been proscribed by this court. See Harris Data Communications, Inc. v. Heffernan, 183 Conn. 194, 197, 438 A.2d 1178 (1981).

       Morgan’s disability was not included in the scheduled injuries under General Statutes § 31-308. Rather, his compensation rate was established through a list of “non-scheduled injuries” that the commissioners have devised under the authority of § 31-308 (d). See General Statutes § 31-308 (d); J. Asselin, Connecticut Workers’ Compensation Manual (1985) pp. 153-57.

       In the context of a workers’ compensation claim, as opposed to a General Statutes § 7-433c claim, a distinction often is made between specific and special benefits based on the certainty of the award. Awards that are fixed for a certain period of time may be categorized as specific, and claims of uncertain duration may be categorized as special. Bassett v. Stratford Lumber Co., 105 Conn. 297, 307, 135 A. 574 (1926) (Haines, J., concurring). Underlying this distinction is the notion that specific awards for the loss of a body part are not contingent on incapacity, and thus, the compensation can be fixed at the time of injury. In contrast, a special award often is viewed as contingent on the disability. Id.; see J. Asselin, Connecticut Workers’ Compensation Manual (1985) pp. 151, 164.

       Although the benefits under General Statutes § 7-433c are calculated by a compensation commissioner in accordance with chapter 568, it is significant that the two statutes are recognized as “separate and distinct legislation.” Bakelaar v. West Haven, 193 Conn. 59, 67, 475 A.2d 283 (1984). Reference is made to chapter 568 only for legislative efficiency: to avoid duplication of an administrative mechanism. Plainville v. Travelers Indemnity Co., 178 Conn. 664, 671-72, 425 A.2d 131 (1979). Accordingly, the substantive law of § 7-433c governs claims under that section; chapter 568 is used only for purposes of computation.

       The other major type of economic loss is costs for medical care; see 2 F. Harper & F. James, The Law of Torts (1956) § 25.8, p. 1316; 22 Am. Jur. 2d, Damages § 1; which also are compensable under General Statutes § 7-433c. Loss of a body part, although compensable by money damages, is not an economic loss under § 7-433c.

       Although the benefits in this ease were certain as to the amount payable, thus having a characteristic of a specific benefit, because the substantive provisions of General Statutes § 7-433c are determinative in a claim made under that section, the limiting language in the preamble overrides the specific benefit notion which is a feature of workers’ compensation law. See footnotes 11 and 12, supra.

       General Statutes § 31-302 provides: “payment of compensation, commutation into monthly, quarterly or lump sums. Compensations payable under this chapter shall be paid at such particular times in the week and in such manner as the commissioner may order, and shall be paid directly to the persons entitled to receive them unless the commissioner, for good reason, orders payment to those entitled to act for such persons; but, when he finds it just or necessary, the commissioner may approve or direct the commutation, in whole or in part, of weekly compensations under the provisions of this chapter into monthly or quarterly payments, or into a single lump sum, which may be paid to the one then entitled to the compensation, and such commutation shall be binding upon all persons entitled to compensation for the injury in question. In any such case of commutation, a true equivalence of value shall be maintained, with due discount of sums payable in the future; and, when commutation is made into a single lump sum, the commissioner may direct that it be paid to any savings bank, trust company of life insurance company authorized to do business within this state, to be held in trust for the beneficiary or beneficiaries under the provisions of this chapter and paid in conformity with the provisions of this chapter.”

       General Statutes § 31-300 provides in part: “The court may issue execution upon any uncontested or final award of a commissioner in the same manner as in cases of judgments rendered in the superior court; and, upon the filing of an application to the court for an execution, the commissioner in whose office the award is on file shall, upon the request of the clerk of said court, send to him a certified copy of such award.”