Benz v. Walker

• Citation: 221 A.2d 841,154 Conn. 74
• Court: Connecticut Supreme Court
• Decision Date: 12 July 1966
• Parties: Walter A. BENZ, Jr., et al. v. George J. WALKER et al.

Page 841

221 A.2d 841

154 Conn. 74

Walter A. BENZ, Jr., et al. v. George J. WALKER et al.

Supreme Court of Connecticut.

July 12, 1966.

Joseph T. Sweeney and Leo J. McNamara, Norwich, with whom, on the brief, was Allyn L. Brown, Jr., Norwich, for appellants (plaintiffs).

F. Michael Ahern, Asst. Atty. Gen., with whom were Carl D. Eisenman, Asst. Atty. Gen., and, on the brief, Harold M. Mulvey, Atty. Gen., for appellees (defendants).

Before KING, C.J., and MURPHY, ALCORN, SHANNON and HOUSE, JJ.

HOUSE, Associate Justice.

The plaintiffs are thirty-two state policemen who either failed to receive passing marks in oral examinations for the creation of eligibility lists for promotion in the state police department or who, although receiving passing marks, claim that their positions on the lists are such that they will not be certified for promotion during the life of the lists. The examinations were set up and conducted by the state personnel department. The plaintiffs allege that the employment lists promulgated by the personnel department as a result of the examinations are illegal and invalid because the examinations were not conducted in accordance with the requirements of the applicable statutes. They sought a judgment declaring the lists invalid and coercive relief by way of injunctions prohibiting the state police commissioner from making any appointments on the basis of the lists and the state personnel director from using the results of the examinations in the formulation and promulgation of any employment list. Only the commissioner and the director were named defendants in the action. The Superior Court denied the relief sought, and the plaintiffs have appealed.

The record discloses that 182 candidates took the oral portion of the examination for sergeant and that eighty-five took the oral examination for detective. One hundred and six candidates received passing grades in the examination for sergeant, and fifty-five passed the examination for detective. Some passed both examinations. Of the thirty-two plaintiffs, eleven were successful in passing either or both examinations. Twenty-two state policemen who passed the oral examinations entered a general appearance in the case, and their attorney participated in the trial. Hence, at least 75 percent of those who passed were not parties to the action, and it does not appear that any attempt whatsoever was made to give them any notice of this suit.

Section 309 of the Practice Book expressly provides: 'The court will not render declaratory judgments upon the complaint of any person * * * (d) unless all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof.' This rule has been in effect since 1922 (Practice Book, 1922, § 63) and was adopted following the enactment of chapter 258 of the Public Acts of 1921 (now General Statutes § 52-29), which for the first time provided for declaratory judgment actions with specific authorization for such judicial orders and rules as were deemed necessary to effectuate the provisions of the statute. In 1923, the constitutionality of the statute was upheld, and the rules adopted pursuant to its authority were approved by this court. Braman v. Babcock, 98 Conn. 549, 120 A. 150.

This rule is not merely a procedural regulation. It is in recognition and implementation of the basic principle that due process of law requires that the rights of no man shall be judicially determined without affording him a day in court and an opportunity to be heard. We had recent occasion to reiterate with approval in Winick v. Winick, 153 Conn. 294, 298, 216 A.2d 185, the words of this court in Ackerman v. Union & New Haven Trust Co., 91 Conn. 500, 508, 100 A. 22, 25: 'It is the settled rule of this jurisdiction, if indeed it may not be safely called an established principle of general jurisprudence, that no court will proceed to the adjudication of a matter involving conflicting rights and interests, until all persons directly concerned in the event have been actually or constructively notified of the pendency of the proceeding, and given reasonable opportunity to appear and be heard. This firmly fixed limitation, which, in effect if not technically in all cases, is a jurisdictional one, is as binding in English practice as it is with us. It is a principle safe from the reach of attack by remedial legislation because of its sound constitutional basis.'

The simple requirements of the rule, with its provision for notice, are not as onerous as those imposed in most other jurisdictions, a majority of which require that all persons who have or claim an interest in the subject matter of an action for a declaratory judgment or who may be affected by the result must actually be joined as necessary parties. 26 C.J.S., Declaratory Judgments § 122; 22 Am.Jur.2d, Declaratory Judgments, § 80; note, 71 A.L.R.2d 723; Anderson, Declaratory Judgments (2d Ed.) § 130; Borchard, Declaratory Judgments (2d Ed.), pp. 132-36. The Uniform Declaratory Judgments Act, which has been adopted, at least substantially, in a majority of the states, expressly provides in § 11 that '(w)hen declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration.' 'As between such a provision as that in the uniform declaratory judgment statute we have quoted and the absence of any requirement that persons having a direct interest in the subject-matter of the action should be made parties, we have chosen the middle course. Under our rule all such persons even though their presence is not necessary to a decision of the issues between the parties of record, are required either to be made parties or to have reasonable notice of the action. Where they are reasonably within the reach of process and are not so numerous that it would impose an unreasonable burden upon the plaintiff, they should be made parties; but, if they or some of them are not reasonably available for service or to summon them or all of them into the action would put upon the plaintiff a burden he ought not fairly to be asked to assume, the provision for reasonable notice applies. The plaintiff may often accomplish the purpose intended by making parties defendant some of the other persons affected as representing all and securing authority from the court for them to defend in behalf of all. General Statutes (Rev. 1930), § 5519 (now General Statutes § 52-105). Unless all persons who are interested in the subjectmatter complained of are made parties, the plaintiff should apply to the court for such an order of notice to all those interested as would constitute reasonable notice to them.' National Transportation Co. v. Toquet, 123 Conn. 468, 484, 196 A. 344. 'We have consistently insisted on a strict observance of this rule.' Wenzel v. Town of Danbury, 152 Conn. 675, 677, 211 A.2d 683, 684; see Riley v. Liquor Control Commission, 153 Conn. 242, 249, 215 A.2d 402; DeForest & Hotchkiss Co. v. Planning and Zoning Commission of Town of Madison, 152 Conn. 262, 270, 205 A.2d 774; Brewster v. Brewster, 152 Conn. 228, 236, 206 A.2d 106; Leo Foundation v. Cabelus, 151 Conn. 655, 658, 201 A.2d 654; Connecticut Society of Architects, Inc. v. Bank Building & Equipment Corporation, 151 Conn. 68, 77, 193 A.2d 493; Corsino v. Grover, 148 Conn. 299, 309, 170 A.2d 267, 95 A.L.R.2d 751; Adams v. Greenwich Water Co., 138 Conn. 205, 217, 83 A.2d 177; Fisher v. Kallenbach, 135 Conn. 147, 149, 62 A.2d 336; Brennan v. Russell, 133 Conn. 442, 445, 52 A.2d 308.

Since all of the candidates who were successful in the examinations are not parties to this action or were not given notice of its pendency pursuant to the express requirements of Practice Book § 309(d), their rights cannot be adjudicated in these proceedings. Nor does due process of law permit the fruits of their success to be destroyed without notice and an opportunity to be heard. We have, therefore, no occasion to consider further the appeal from the judgment which found the issues for the defendants. Holt v. Wissinger, 145 Conn. 106, 113, 139 A.2d 353. Since the plaintiffs' request for a declaratory judgment must be dismissed, it follows that their claims for injunctive relief must likewise fail. Such relief is, in this case, merely incidental or ancillary to their claim for a declaration that the promotional examinations and resulting employment lists are invalid.

There is no error.

In this opinion KING, C.J., and ALCORN, J., concurred.

MURPHY, Associate Justice (concurring).

In concur in the result because of the failure to cite in the successful candidates other than the twenty-two who appeared generally. I do so with great reluctance because I am convinced that the examinations did not conform to the statutory requirements. Were it not for the failure to join the necessary parties, the results should be nullified and new examinations ordered. Had proper procedure been followed and all interested candidates notified, this court would, I am satisfied, declare the 1964 oral examinations invalid.

Following a request from the state police commissioner to establish an employment list for sergeants and an employment list for detectives from which the commissioner could make appointments to those positions, the state personnel department conducted a written examination of the eligible members of the police department who sought to qualify for either one or both employment lists. In response to a request from the personnel department, the heads of the state police departments in six sister states provided the services of three captains and three lieutenants from their departments as qualified examiners to conduct oral examinations for these positions. Two of the six had served previously in this state as examiners.

Prior to October 5, 1964, the date the examinations started, the personnel department had provided each of the...