259 A.2d 650 | Conn. Super. Ct. | 1969
This case, submitted to the court on a stipulation of facts, originally was instituted by the plaintiff association, a nonstock corporate association of Waterbury homeowners and taxpayers (later joined by the individual plaintiff, Robert Cook, an elector of the city of Waterbury), in the form of an injunction action praying for a temporary and permanent injunction against the defendant city of Waterbury and the defendant Lawrence J. Zollo, as president of the board of aldermen of the city. Originally, it sought to restrain the defendants from proceeding with a $29 million bond issue for the financing of a new school complex until the bond issue is approved by a referendum vote, but after a show cause hearing at which the plaintiffs' motion for a temporary injunction was denied, a second count was added to the complaint and the prayer for relief was expanded to include a claim for a mandamus.
It has been stipulated that on December 2, 1968, the board of aldermen of the city of Waterbury, of which the defendant Zollo was president, met and voted to authorize a $29 million bond issue to finance *297 a new school complex, which proposed bond issue had been a subject of much public controversy for a long period of time; that the plaintiffs, committed to the position that a decision of such fiscal magnitude should be made only by the voters of the city through a referendum, procured 3200 signatures to a petition for a referendum; that this petition was duly filed with the city clerk on December 31, 1968; and that at least 2676 of the names and addresses thereon were those of eligible Waterbury voters. To summarize the balance of the stipulation of facts, the form of the petition was ruled invalid by Waterbury's corporation counsel on January 14, 1969, owing to claimed insufficient statements of the circulators of the petition; after a meeting of representatives of the plaintiff association with the board of aldermen, the board, on January 29, 1969, refused to order the referendum; and requests for sealed bids on the bonds are now ready for immediate publication by the city, such publication being held up pending determination of this action. The several legal questions raised will be hereinafter discussed and determined separately, although actually a determination of one or two of them would suffice to reach a decision in favor of the defendants.
An examination of the petition itself indicates that it obviously does not comply with the requirements of §
Since it has been stipulated that no circulator's statement as required was affixed to each page of the petition, the plaintiffs have conceded, for all practical purposes, that it was not in legal form. They have argued that the requirements of §
It appears from the stipulation of facts and an exhibit that the plaintiffs requested of the city clerk, orally on or about December 5, 1968, and by a letter prior to that date, forms of a petition for a referendum or his approval of a form submitted. The forms requested were not available, and the clerk did not approve or disapprove the form submitted by plaintiffs, which refusal or failure on his part to act is claimed by plaintiffs to violate the portion of §
It is unfortunate that the plaintiffs did not know that the form of petition used by them was illegal, but, after all, the familiar rule that ignorance of the law is no excuse is founded on public policy. SeeAtlas Realty Corporation v. House,
(a) Where, as here, there is an express grant of power to the municipality by the legislature, that power, and only that power as expressly granted, can be exercised by the municipality, and if, for example, the charter points out a particular way in which any act is to be done, then, unless the prescribed forms are pursued the act is not lawful.Bredice v. Norwalk,
(b) Our Connecticut courts do not recognize the existence of general inherent powers of municipalities, which are limited to those expressly granted by the constitution, statutes and charter and those necessarily implied from such express powers. SeeTheurkauf v. Miller,
Regardless of the foregoing conclusions of law, the plaintiffs have not sustained their burden of proving irreparable harm and lack of adequate remedy at law. These requirements have been spelled out repeatedly by our Supreme Court.Stocker v. Waterbury,
To "disfranchise", according to Ballentine, Law Dictionary (2d Ed.), means "[t]o deprive a person of his citizenship, his franchise or his right of suffrage," and the right of suffrage has been defined as the right of a man "to vote for whom he pleases."In re City Clerk of Paterson,
The "increased tax burden" argument is an equally unimpressive claim of irreparable injury unsupported by the evidence. For example, "the Minutes of the Special Meeting of the Superintendent of Schools, Board of Education, Board of Aldermen and Board of Finance Held on July 17, 1968," show clearly the need for replacement of eleven elementary schools and two high schools, and the tabular comparison of the net cost of the educational park project (middle school) with the expansion of the existing school system makes it quite clear that the choice is not one of spending either the proposed $29 million or nothing. The choice is simply how the money is to be spent. The special bond report prepared by the department of budget control and audit, dated June 30, 1968, further weighs against the "tax burden" claim.
In another case involving the finances of the city of Waterbury, Cassidy v. Jenks,
A writ of mandamus as requested by the amended complaint will issue only to enforce a clear legal right where the one to whom it is addressed is under a clear legal obligation to perform the act to be commanded. Boyko v. Weiss,
Here, neither the original complaint nor the amended complaint indicates the specific ministerial act which the plaintiffs seek to have performed. Only one member of the board of aldermen, Zollo, has been named as a defendant, and clearly he alone, even as president of the board, has no control over the issuance and sale of bonds. And even if the board of aldermen had the power to conduct a referendum, such a vote would be an act involving judgment and discretion on its part and not a mere ministerial act, so that a mandamus could not issue under such cases as Sharkiewicz v. Smith,
The court is satisfied, from the exhibits on file, that the board of finance and board of aldermen complied with the procedural requirements of § 1501