Bredice v. City of Norwalk

• Decision Date: 23 December 1964
• Court: Connecticut Supreme Court
• Parties: Nicholas J. BREDICE et al. v. CITY OF NORWALK et al. Supreme Court of Errors of Connecticut

Page 433

206 A.2d 433

152 Conn. 287

Nicholas J. BREDICE et al. v. CITY OF NORWALK et al.

Supreme Court of Errors of Connecticut.

Dec. 23, 1964.

Daniel E. Reed, Jr., Norwalk, with whom was Jack Waltuch, Norwalk, for appellants (plaintiffs).

Sidney Vogel, Norwalk, with whom was Richard Khachian, Norwalk, for appellees (defendants).

Edward J. Zamm, Deputy Corporation Counsel, appeared for appellee (defendant city).

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

ALCORN, Associate Justice.

This is a taxpayers' action asserting that an ordinance adopted by the common council of the city of Norwalk purporting to establish a law department for the city is illegal and void because the common council lacked the power to enact it. The plaintiffs seek a declaratory judgment to that effect, together with injunctive relief designed to prevent the exercise of any powers or the payment of any city moneys under the authority of the ordinance. The ordinance is quoted in the footnote. ¹ The court concluded that the plaintiffs have a legal right to maintain the action, that the validity of the ordinance is a proper subject for a declaratory judgment, that an actual bona fide and substantial question is in dispute requiring settlement between the parties, and that all persons having an interest are parties to the action or have reasonable notice thereof, and these conclusions are not attacked. The court further concluded, however, that the Norwalk charter empowered the common council to enact the ordinance, and rendered judgment for the defendants. The plaintiffs have appealed from the judgment; their assignments of error may be condensed into the single issue whether the common council acted in excess of its powers.

It is conceded that the city of Norwalk exists by virtue of special act of the General Assembly. 16 Spec.Laws, p. 1038, No. 352, as amended. The charter provides that '[o]n the Wednesday following their election the council shall appoint a city clerk, a city engineer, a street commissioner, and a milk inspector, and the mayor of the city on the same day shall appoint a corporation counsel * * * for the term of two years, each of whom shall hold office until his successor is appointed and qualified, unless removed for cause.' 16 Spec.Laws, p. 1061, § 79. Amendments (21 Spec.Laws, p. 295, No. 323; 22 Spec.Laws, p. 225, No. 383; 24 Spec.Laws p. 587, No. 150; 25 Spec.Laws, p. 297, No. 206) affecting the section do not concern the present issue. The charter further provides that '[t]he mayor of said city, when in his opinion it is necessary, may, with the consent of the council, employ attorneys, other than the corporation counsel, in matters affecting the interests of said city, and all services rendered to said city by such attorneys shall be paid for in the same manner as other claims against said city.' 16 Spec.Laws, p. 1058, § 65. Among the many purposes for which the common council is authorized by the charter to make and enforce ordinances, no mention is made of a corporation counsel, an assistant corporation counsel, a deputy corporation counsel, a 'law department' or any matter relating thereto. 16 Spec.Laws, p. 1061, § 80 (as amended 18 Spec.Laws, p. 909, § 3; 20 Spec.Laws, p. 644, § 3). Nor is any such authority conferred by § 7-148 of the General Statutes. In § 81 of the charter (16 Spec.Laws, p. 1064), it is provided that '[s]aid council shall have power to make, alter, repeal, and enforce any ordinance which it may deem conducive to the general health, peace, good order, walfare, and safety of the inhabitants of said city, and for the protection of the property therein'.

The city of Norwalk, being a creature of the state, can exercise no powers except those which are expressly granted to it or are necessary to enable it to discharge the duties and carry into effect the objects and purposes of its creation. Old Colony Gardens, Inc. v. Stamford, 147 Conn. 60, 62, 156 A.2d 515; Lacava v. Carfi, 140 Conn. 517, 520, 101 A.2d 795; Kelly v. Bridgeport, 111 Conn. 667, 673, 151 A. 268; State ex rel. Coe v. Fyler, 48 Conn. 145, 158. 'If the charter points out a particular way in which any act is to be done, or in which an officer is to be elected, then, unless these forms are pursued in the doing of any act, or in the electing of any officer, the act or the election is not lawful.' State ex rel. Southey v. Lashar, 71 Conn. 540, 546, 42 A. 636, 638, 44 L.R.A. 197. The power of the city to enact an ordinance depends primarily on whether the ordinance is in harmony and consistent with the power delegated to it by the state. It matters not that that power is defined by special act affecting a particular municipality rather than by a statute of general application to all municipalities. In either case, the action of the General Assembly has fixed the policy of the state, and the city, by its common council, cannot proceed contrary to it. See Peterson v. Norwalk, 150 Conn. 366, 382, 190 A.2d 33; Teubner v. Waterbury, 149 Conn. 524, 528, 182 A.2d 417. An attempt, by ordinance, to exercise a function authorized by the charter in a manner inconsistent with the provisions of the charter is ineffective and invalid. Connelly v. Bridgeport, 104 Conn. 238, 253, 132 A. 690.

The defendants seek to justify the attempted creation of the position of deputy corporation counsel by the assertion that the incumbent would be only an employee of the corporation counsel, who is still to be appointed in the manner provided by the charter. The argument is that the ordinance therefore does not create a new municipal office numentioned in the charter. The claim is unsound. The accepted characteristics which differentiate a public office from a mere employment are (1) an authority conferred by law, (2) a fixed tenure of office, and (3) the power to exercise some portion of the sovereign functions of government. Kelly v. Bridgeport, supra, 111 Conn. 671, 151 A. 268; State ex rel. Neal v. Brethauer, 83 Conn. 143, 146, 75 A. 705; State ex rel. Stage v. Mackie, 82 Conn. 398, 401, 74 A. 759, 26 L.R.A.,N.S., 660. The office of deputy corporation counsel which the ordinance attempts to create meets every element of the test. If it were to be assumed that the common council acted within the power conferred upon it by the city charter, the office would be one created by law. Life tenure in the office is established, and the power to exercise portions of the sovereign functions of the government is clearly spelled out. The ordinance declares that the deputy corporation counsel be generally considered to be the permanent legal officer of the city and confers upon him broad powers, including the prosecution and defense of all suits and controversies in which the city is a party or is in any way interested, and designates him to prepare and approve all forms of contracts or other instruments to which the city is a party or in which it has an interest.

The powers purported to be conferred on the deputy corporation counsel obviously invest him with elements of the sovereign power of the city government to be exercised by him for the public good. That he would be a public officer rather than an employee, notwithstanding the fact that the corporation counsel is declared to be the 'head' of the law department, is clear. Kelly v. Bridgeport, supra; see cases such as Sibley v. State, 89 Conn. 682, 685, 96 A. 161, L.R.A.1916C, 1087; McDonald v. New Haven, 94 Conn. 403, 415, 109 A. 176, 10 A.L.R. 193.

The office of deputy corporation counsel, being a public office, could not be created by ordinance passed by the common council unless the authority to create it can be found to have been delegated by the state. Tremp v. Patten, 132 Conn. 120, 125, 42 A.2d 834; State ex rel. Stage v. Mackie, supra. The charter authorizes the mayor to appoint a corporation counsel for a two-year term, to hold office, unless removed for cause, until his successor is appointed and qualified. It further authorizes the mayor, when in his opinion it is necessary, to employ, with the common council's consent, attorneys other than the corporation counsel, in matters affecting city business, who are to be paid on the basis of bills rendered for the specific services. The state has thus defined the manner in which the city's legal affairs shall be handled. The situation then is not one in which the city is, by ordinance, purporting to exercise an express or implied power. Instead, it is purporting to act in direct conflict with the charter. Since the charter has designated the way in which Norwalk is to provide for its necessary legal...