Theurkauf v. Miller
| Decision Date | 24 November 1965 |
| Citation | 214 A.2d 834,153 Conn. 159 |
| Court | Connecticut Supreme Court |
| Parties | Thomas F. THEURKAUF et al. v. John A. MILLER, Town Clerk of the Town of Glastonbury, et al. Supreme Court of Errors of Connecticut |
Thomas P. Byrne, Hartford, for appellants (plaintiffs).
Edward C. Wynne, Glastonbury, for appellees (defendants).
Before KING, C. J., and MURPHY, ALCORN, SHANNON and HOUSE, JJ.
In November, 1962, the Glastonbury town council, acting pursuant to the provisions of §§ 7-147a through 7-147k of the General Statutes, adopted an ordinance establishing a historic district in the town. Subsequently, § 7-147m was enacted effective July 1, 1963. This later statute, so far as is relevant here, provided that, in any town which had established a historic district, 15 percent of the owners of record of real property within that district might, not later than January 1, 1964, petition the legislative body of the town for a balloting of all the owners on the question of continuing the district. Unless, upon this balloting, 75 percent of these owners consented to the continuance of the district, its existence should terminate.
The plaintiffs have brought this action against the town clerk, the town manager and all the members of the town council, alleging that the plaintiffs are 'electors and/or taxpayers' of the town and residents and property owners within the district. It is alleged that a document purporting to be a petition, filed pursuant to § 7-147m, was filed on or before December 30 1963, and that the town council thereupon voted to hold a referendum pursuant to that statute. Several deficiencies in the document, in its form and in its time of filing are pleaded. It is expressly alleged that the action of the town council in directing the holding of the referendum is unlawful and will cause irreparabe damage to the public and private rights of the plaintiffs and that they have no adequate remedy at law.
The only specific relief claimed by the plaintiffs is equitable by way of an injunction restraining the defendant town officials from warning and holding a referendum regarding the continuance of the historic district either in accordance with its prior resolution or at any other time. Since the extraordinary remedy of relief by way of an equitable injunction is the specific relief claimed, it was incumbent upon the plaintiffs not only to allege their irreparable damage and lack of an adequate remedy at law, as they have done, but to prove it. Both the allegations and the proof are necessary conditions precedent to the granting of the relief which the plaintiffs seek. Bendell v. Johnson, 153 Conn. 48, 51, 212 A.2d 199; Weaver v. Ives, 152 Conn. 586, 590, 210 A.2d 661; Crouchley v. Pambianchi, 152 Conn. 224, 226, 227, 205 A.2d 492; Coyle v. Housing Authority, 151 Conn. 421, 424, 198 A.2d 709; Stapleton v. Lombardo, 151...
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