Bissell v. Butterworth

• Decision Date: 07 July 1922
• Citation: 118 A. 50,97 Conn. 605
• Court: Connecticut Supreme Court
• Parties: BISSELL v. BUTTERWORTH et al.

118 A. 50

97 Conn. 605

BISSELL v. BUTTERWORTH et al.

Supreme Court of Errors of Connecticut.

July 7, 1922

[Copyrighted Material Omitted]

Appeal from Superior Court, Hartford County; William M. Maltbie and L. P. Waldo Marvin, Judges.

Action by Harvey P. Bissell against Frank S. Butterworth and others. Judgment for plaintiff, and the defendants appeal. Judgment set aside, and case remanded for further proceedings.

Suit to restrain the defendant Butterworth from receiving as compensation for personal services any part of the money received by him under the provisions of chapter 336 of the Public Acts of 1919, as amended by chapter 391 of the Public Acts of 1921, and to restrain the defendant the American Legion, Connecticut Department, from paying to any person any part of the money received by it under the provisions of said acts, as compensation for personal services in administering and disbursing the interest accumulations of the fund provided by said acts, and from authorizing any person to withdraw any of such money for such purposes; and to require the defendant Butterworth to disclose and return any money he has hitherto received as compensation for such services; and also for a declaratory judgment that no part of the principal or interest of the fund appropriated by said acts shall be disbursed, paid, or extracted from said principal or interest for the compensation for the personal services of any person charged with the duty of directing the disbursement of said principal or interest. This suit was brought to the superior court in Hartford county, wherein a demurrer to certain paragraphs of the answer was sustained pro forma (Marvin J.), and upon defendants' refusal to further plead judgment was entered for the plaintiff. Defendants appeal. Error and cause remanded for judgment for the defendants.

The Public Act of 1919, which is involved in this suit, is entitled " An act providing for payment to discharged soldiers, sailors and marines." By its terms, including amendments made in 1921, the treasurer of the state was-

" directed to purchase bonds or notes issued by the government of the United States *** to the aggregate of not more than two and one-half million dollars as shall be found necessary to carry out the provisions of this act, and to place the same in the custody and control of the board of control, which board is constituted a board of trustees of the fund so created. Said board shall administer said fund as required by the provisions hereof. *** The interest accumulations of the fund so held in trust, or so much thereof as shall be found necessary to carry out the purposes hereinafter stated, shall be paid upon the order of the comptroller, upon such statements as he may require, to the treasurer of the organization of soldiers, sailors and marines, *** which organization, when organized and perfected to the approval of said board of control, shall disburse the same. *** Said payments of interest shall be made at such definite and stated periods as shall be necessary to meet the convenience of such organization and said board of trustees, but each payment shall be made on the order of the treasurer of such organization duly approved by at least two executive officers thereof or of a special committee of such organization thereunto specially authorized. No part of the interest accumulation of said fund shall be expended for the purpose of organizing or maintaining such organization or association so approved."

In section 2 it is declared that-

" All moneys so paid to and received by such organization shall be expended by it in furnishing food, wearing apparel, medical or surgical aid, care or relief, or in bearing the funeral expenses of soldiers, sailors or marines who entered any branch of the military service of the United States at any time between April 6, 1917, and November 11, 1918, inclusive," or the service of its allies, and who have been honorably discharged or released therefrom, " and who were citizens or resident aliens of the state at the time of entering the said armed forces of the United States or its allies, or to their widows, or dependent children under sixteen years of age who may be in need of the same. All such payments shall be made by such organization under authority of by-laws adopted or to be adopted by it, which by-laws shall include provisions for the determination of persons entitled to such aid and shall be approved by the board of control. The treasurer of such organization shall account to said board of trustees" at stated times " for all moneys disbursed by it." Public Acts of 1921, pp. 3408, 3409.

The original complaint and writ, with a temporary injunction issued by a judge of the superior court, were served December 31, 1921, and returnable on the first Tuesday of February, 1922. The original plaintiffs claimed the right to maintain the suit on the ground that they were taxpayers and possible beneficiaries of the trust fund created by the act of 1919. On January 24, 1922, the defendant made a motion that the temporary injunction be dissolved by the judge who issued it. At the hearing on this motion, Harvey P. Bissell asked to be joined as a party plaintiff on the ground that he is Comptroller of the state and ex officio a member of the Board of Control. After the hearing and after the return day of the writ and complaint, the judge decided that the original plaintiffs had not sufficient interest to maintain their action, but that the Comptroller would have if he were a plaintiff, and denied the motion to dissolve the temporary injunction in order to give the Comptroller an opportunity to be made a plaintiff by order of court. Afterwards Harvey P. Bissell, as Comptroller and member of the Board of Control, filed his motion to be made a party plaintiff, which was granted February 24, 1922, and subsequently the Governor, Treasurer, and Attorney General, being the other members of the Board of Control, and the American Legion, Connecticut Department, and the Attorney General ex officio, were joined as codefendants by order of the court. Thereafter the plaintiff Bissell was permitted to file an amended complaint, setting out his official positions and consequent " duty of properly administering a certain fund" appropriated by the Acts of 1919 and 1921, and alleging that the defendant the American Legion, Connecticut Division, is the organization designated under the provisions of those acts to disburse that fund; that the defendant Butterworth has been since July 1, 1921, the treasurer of this organization, and as such treasurer has been the official designated to receive and disburse the interest accumulations of this fund; that the defendant the American Legion has not used all of the money received from this fund solely for food, wearing apparel, aid and funeral expenses of the persons entitled thereto by the provisions of the Acts of 1919 and 1921, but has paid the defendant Butterworth and authorized him to withdraw from these funds $300 a month since October 1, 1921, " for his personal services in the performance of his duties in disbursing said funds" ; that the defendant has so withdrawn and appropriated such sums as compensation for such services; and that both of these defendants threaten to continue such acts. In paragraphs 6, 7, and 8 of his amended complaint, the plaintiff, Bissell, asserts that the entire amount of the interest of the fund provided by the Acts of 1919 and 1921 is now and will for a long time be necessary for expenditures for food and other aid and for funeral expenses of the beneficiaries described therein; that he has already contributed part of the money contained in the fund and is liable to be taxed for any deficit due to the withdrawal of money therefrom for the purpose complained of; and that he is irreparably damaged by the acts and threats of the two defendants named in these allegations, and has no adequate remedy at law. He claims relief by way of injunction to restrain the two defendants named, and also a declaratory judgment, in the manner and effect above stated.

In their answer to this complaint, the defendants assert that they have expended all the money received in furnishing food and other assistance to the persons entitled thereto under the Acts of 1919 and 1921, deny paragraphs 6, 7, and 8, and admit the other material allegations. They also set up a special defense in which they aver that after the defendant the American Legion, Connecticut Division, had been requested and approved by the Board of Control on December 2, 1919, to distribute the interest of the trust fund created by the act of 1919, and in accordance with a requirement of that act, the legion adopted certain by-laws for the purpose of carrying its provisions into effect; that in these by-laws it was provided that a special committee should be appointed, consisting of the treasurer of the legion, who should be chairman, and two other members, which should have full power, as the representative of the legion and in co-operation with the Board of Control in such manner as that board should direct, to dispose of all matters arising under said law, and whose judgment should be final and conclusive in the management and disbursement of all moneys to be paid to it under the terms of that act; and that a copy of these by-laws was filed with and approved by the Board of Control January 6, 1920.

In paragraph 4 of the special defense, the defendants allege that on the day when the Board of Control approved the legion as the organization to disburse the income of the trust fund, its executive committee passed the following vote:

" Voted: On motion of Mr. Butterworth, that communication to the Board of Control accepting this trust fund should contain

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