Gregory v. City of Bridgeport

41 Conn. 76 | Conn. | 1874

Phelps, J.

The record in this cause presents for decision the question whether the respondent is legally authorized to make an appropriation from its treasury to indemnify an officer appointed under a by-law enacted by its common council, and approved by itself, in pursuance of authority conferred by its charter.

The officer or agent of a municipal corporation may he legally indemnified, provided he lias acted in good foith in the discharge of his official duty in a matter in which the corporation had an interest. and with respect to a duty imposed or. authorized by law. The general powers of such corporations are clearly prescribed, and those which are incidental, and implied .in aid of those expressed, are generally not difficult of designation. The authority to appropriate money for objects within the scope of the powers either conferred or implied, is indispensable to the pi’oper and efficient exercise of municipal functions, but it is axx authority especially unsafe and liable to abuse, uxxless regulated by the application of sound legal pxdixciples, the interpretation of which is neither doubtful or discretionary.

The charter of the respondent gives its common ’ council power to ordain by-laws relating to whaxwes, and the anchoring, movixxg and mooring of vessels within its limits, and the care axxd management of all wharves axxd landing places, and authority to make axxd cause to be executed all proper orders ixx relation to the protection, use and improvexnent thereof, axid to appoixit all xxecessary and proper officers, and iixvest them with power and authority ixecessaxy axxd proper to carry into effect the by-laws, ordinances, and proper orders of its common council. Uxider the authority thus conferred the by-law ixx question, and the appoixxtxnexxt under it of Capt. Brooks as superintexxdent of wharves, were made. We are satisfied he was legally appoixxted, and that the by-law was regularly passed, axxd possessed all the validity of a lawful ordinance; axxd if the fact was decisive of the issue, we should have xxo difficulty ixx deciding that he believed himself at the tixne to be actixxg ixx the proper discharge of his official duty, axxd was xiot guilty of the bad faith axxd malicious coxxduct towards the petitioner which were imputed to him.

These coxxsideratioxxs, though ixnportaixt in themselves, and if fouxxd ixx favor of the petitioxxer controlliixg, are not so deeply ixnbedded ixx the real xnex’its of the case, as the question whether the respondent had such an ixxterest ixx the subject xnatter of the controversy between the petitioxxer and Brooks as to entitle it to ixxdexnxiify the latter for the expenses incurred by him ixx defexidixxg in the litigatioxx which attexided that controversy. This question lies at the foundation of the case, and is vital as affecting the right of such corporatioxxs as the respondent to make pecuniary appropriations for purposes not expressly, or by clear implication, within the grant of power on which all their corporate authority depends. The artificial legal body known as a municipal corporation is a creature of limited powers. It possesses only such as are specifically granted by the law which confers upon it the right to exist, and such others as are necessary for the purpose of carrying into effect those expressly given. These powers are derived from the general statutes, and from special acts of incorporation, and should not be unnecessarily extended by construction. The act sought to be done should be fairly within the scope of the corporate power, and the principle of implication from which authority not expressly given is claimed to be derived, should be always carefully guarded in the interest and for the protection of the citizen, whose property in the form of taxation is largely subject to the demands and under the control of the municipality.

The by-law referred to is not compulsory in its terms, and does not assume to compel the officer appointed in pursuance of it to exer’ciso official functions on peril oí a forfeiture for refusal. His prescribed duty is simply to hear applications and complaints, and issue orders for the adjustment of differences between those who make conflicting claims connected with the prosecution of their private business. If he consents to act it is at the request of the owners and masters of vessels and the owners and lessees of wharf property, and not at the request of the respondent, or of any of its officers or agents. His compensation, though determined by the by-law, is to be paid by the persons at whose request he acts. They may be non-residents and even aliens owing allegiance to a foreign government, and temporarily within the territorial limits of the corporation for purposes of commercial intercourse. He is not the agent or servant of the respondent, nor subject to its control, and it is not responsible for his official negligence, misconduct, or delinquency, nor benefited by his efficiency and fidelity. With respect to his official character and obligations, the respondent has “ no duty to perform, no rights to defend, and no interest to protect,” and no pecuniary or corporate concern in the subject matter connected with the discharge of his official duties. The want of interest involves the want of power, and is necessarily fatal to the claims of the respondent. Merrill v. Plainfield, 45 N. Hamp., 126; Gove v. Epping, 41 id., 589; Halstead v. Mayor &c., of N. York, 3 Comstock, 430; Martin v. Mayor &c., of Brooklyn, 1 Hill, 545; Hodges v. City of Buffalo, 2 Denio, 110; Vincent v. Nantucket, 12 Cush., 105; Stetson v. Kempton, 13 Mass., 272; Nelson v. Milford, 7 Pick., 18; Fuller v. Groton, 11 Gray, 340; Babbitt v. Savoy, 3 Cush., 530; Bancroft v. Lynnfield, 18 Pick., 566; Tash v. Adams, 10 Cush., 252; Claflin v. Hopkinton, 4 Gray, 502; Hood v. Mayor &c., of Lynn, 1 Allen, 103; Briggs v. Whipple, 6 Verm., 94; Baker v. Windham, 13 Maine, 74 ; Fiske v. Hazard, 7 R. Isl., 438; Sherman v. Carr, 8 id., 43; Brainard v. City of New London, 22 Conn., 552; Webster v. Town of Harwinton, 32 id., 131; Dillon on Municipal Corporations, sec. 98.

The attempt at indemnity in this case is only made by the common council, with no authority or approval of the corporation ; but if it had been in fact expressly authorized and approved by the citizens, in a meeting called and held with the requisite formality, the rights of the minority of tax-payers, however small, would be entitled to protection through the form of remedy which the petitioner has invoked.

We advise the Superior Court to decree that the injunction be made perpetual.

In this opinion the other judges concurred.