City Council of City of West Haven v. Hall

• Decision Date: 15 April 1980
• Citation: 429 A.2d 481,180 Conn. 243
• Parties: , 6 Media L. Rep. 1327 CITY COUNCIL OF the CITY OF WEST HAVEN v. Jon HALL.
• Court: Connecticut Supreme Court

Page 481

429 A.2d 481

180 Conn. 243, 6 Media L. Rep. 1327

CITY COUNCIL OF the CITY OF WEST HAVEN v. Jon HALL.

Supreme Court of Connecticut.

Argued Dec. 11, 1979.

Decided April 15, 1980.

Jon P. Leckerling, Madison, with whom, on brief, was Carter LaPrade, New Haven, for appellant (defendant).

Robert E. Reilly, Corp. Counsel, Madison, for appellee (plaintiff).

Before COTTER, C. J., and BOGDANSKI, SPEZIALE, PETERS and RUBINOW, JJ.

SPEZIALE, Associate Justice.

The dispositive issue in this case is whether § 7-194(26) of the Home Rule Act authorizes a municipality to grant to its governing or legislative body the power to issue subpoenas. We hold that it does not.

The defendant, Jon Hall, is an investigative reporter for the Journal Courier, a daily newspaper. Hall wrote a series of articles about public school lunch programs in the greater New Haven area, including the school lunch program of the city of West Haven. In these articles it was reported, inter alia, that despite its policy requiring competitive bidding for all contracts greater than $1000, the city of West Haven did not use competitive bidding procedures in contracting with major food suppliers of its lunch program, that the use of such bidding procedures might have resulted in a savings of as much as $100,000, and that, for a brief period, an official of the West Haven school system had been employed simultaneously by the city of West Haven and by the supplier of its school lunches.

Subsequently, the plaintiff, the city council of the city of West Haven (hereinafter the city council), commenced under chapter IV, § 9 of the city charter ¹ an investigation of the public school lunch program. Unable to confirm the defendant's findings, the city council by letter requested Hall to appear voluntarily before it both to discuss bidding procedures and to set forth the manner in which he arrived at his calculations. The letter indicated that the investigation would encompass the following areas: "(1) Bidding Procedures. (2) Price differences between the West Haven School Food Service Program and the Journal Courier. (3) Charges that the Food Service Program Director was on the payroll of the West Haven School Food Service Program during the same week." Hall declined the informal request to appear and testify before the city council. He, however, advised the city council that he had obtained all his information regarding bidding procedures and price differentials from the public records of the city of West Haven and from those of other municipalities. Hall also offered to meet informally with city council members as well as with the city council's attorney to answer questions about the price differences. The information Hall had regarding the dual employment of a city official was available from public records and from the city's supplier of school lunches; Hall's knowledge about this topic was disclosed and published in its entirety in the newspaper articles.

Hall was served with two identical subpoenas commanding him to appear before the city council on March 27, 1979. One subpoena was signed by the chairman of the city council; the other was signed by the corporation counsel for the city of West Haven. Hall did not appear before the city council on the above date and subsequently refused to testify before the city council pursuant to the two subpoenas. The city council filed suit seeking, inter alia, an order compelling Hall to testify before it. The trial court (Hadden, J.) rendered judgment for the city council finding that the city had the statutory authority under § 7-194(26) of the Home Rule Act to adopt chapter IV, § 9 of the city charter, ² which expressly grants the city council the power to issue subpoenas if certain conditions, which are not challenged here, are met. The court ordered the defendant to appear before the city council when requested to do so by the corporation counsel of the city of West Haven and to comply with § 51-85 of the General Statutes. ³ The trial court also stated that if Hall "feels that he has a constitutional right not to answer any particular question, then he should assert that right on a question by question basis." From the judgment for the city council, Hall has appealed.

The basic issues raised in this case are: (1) whether § 7-194(26) of the Home Rule Act ⁴ empowers a municipality to adopt a charter provision authorizing its governing or legislative body to issue subpoenas in investigative hearings; ⁵ (2) whether the trial court erred in not concluding that the city council's inquiry into a journalist's thoughts, opinions, and conclusions was violative of the first amendment to the United States constitution; and (3) whether the trial court erred in concluding that the city council need not meet a constitutionally mandated burden of proof when subpoenaing a newspaper reporter. Because our resolution of the first issue is decisive of the case, there is no need to reach the latter issues. We conclude that § 7-194(26) of the Home Rule Act does not authorize a municipality to grant to its governing or legislative body the power to issue subpoenas.

Section 7-194 of the General Statutes provides, in relevant part, that "all towns, cities or boroughs which have a charter or which adopt or amend a charter under the provisions of this chapter shall have the following specific powers in addition to all powers granted to towns, cities and boroughs under the constitution and general statutes: ... (26) to make and enforce police, sanitary and other similar regulations and to protect or promote the peace, safety, good government and welfare of the town, city or borough and its inhabitants." (Emphasis added.)

We have long recognized that as a creation of the state, a municipality has no inherent powers of its own. Pepin v. Danbury, 171 Conn. 74, 83, 368 A.2d 88 (1976); New Haven Water Co. v. New Haven, 152 Conn. 563, 566, 210 A.2d 449 (1965); State ex rel. Coe v. Fyler, 48 Conn. 145, 158 (1880); see also Baker v. Norwalk, 152 Conn. 312, 314, 206 A.2d 428 (1965); Bredice v. Norwalk, 152 Conn. 287, 292, 206 A.2d 433 (1964); Crofut v. Danbury, 65 Conn. 294, 32 A. 365 (1894). Unlike the inherent powers that appertain to state legislatures; 4 McQuillin, Municipal Corporations (3d Ed.Rev. 1979) § 13.03, p. 510; the only powers a municipal corporation has are those which are expressly granted to it by the state. Pepin v. Danbury, supra, 171 Conn. 83, 368 A.2d 88. We also have recognized that a municipality has such powers as are "necessary to enable it to discharge the duties and carry into effect the objects and purposes of its creation." Board of Police Commissioners v. White, 171 Conn. 553, 559, 370 A.2d 1070, 1073 (1976); Avonside, Inc. v. Zoning & Planning Commission, 153 Conn. 232, 236, 215 A.2d 409 (1969).

The above-quoted language regarding powers that are "necessary" is relied upon heavily by the city council to support its claim that the legislature delegated to municipalities under § 7-194(26) the power to issue subpoenas even though such power is not expressly mentioned in this section of the Home Rule Act. We disagree. The legislature certainly has the authority to grant subpoena power to municipalities, ⁶ and, in fact, specifically has authorized certain persons to issue subpoenas compelling the attendance of witnesses before municipal boards of police commissioners. General Statutes § 7-279. We do not believe, however, that § 7-194(26) can be read so expansively as to permit the conclusion that it contains a legislative grant of the subpoena power.

The power to issue a subpoena is a great power. " 'It is the duty of every witness, lay or expert, to respond to a subpoena and, unless privileged, to testify to factual matters relevant to a controversy.' " DiPalma v. Wiesin, 163 Conn. 293, 303, 303 A.2d 709, 714 (1972); Thomaston v. Ives, 156 Conn. 166, 172, 239 A.2d 515 (1968); cf. Nixon v. United States, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). Therefore, it is noteworthy that the legislature in § 7-194 granted in express terms powers which may be considered of lesser magnitude than the subpoena power. For example, there is authorization under § 7-194(13) for a municipality "to provide for the planting, rearing and preserving of shade and ornamental trees on the streets and public grounds" and under § 7-194(23) "to permit, regulate and prohibit games, coasting, sliding and, subject to the provisions of the general statutes, the use of velocipedes, bicycles and tricycles, on the streets or sidewalks of the town, city or borough." A fortiori, if the legislature had intended to include this very important authority to issue subpoenas, it would have specifically so stated. The power to subpoena, however, does not appear in § 7-194 of the General Statutes as revised to 1979. In State ex rel. Barnard v. Ambrogio, 162 Conn. 491, 497-98, 294 A.2d 529, 533 (1972), we noted: "That the legislature went to the extent of precisely enumerating (numerous) specific powers without mentioning (a subpoena power) indicates that it did not intend to grant the municipalities such a power by way of a charter adoption." It is generally held that the express enumeration of powers granted to municipalities constitutes an exclusion of all other powers not expressly delegated to them. 2 McQuillin, Municipal Corporations (3d Ed.Rev.1979) § 10.23, p. 802. See also State ex rel. Barlow v. Kaminsky, 144 Conn. 612, 620, 136 A.2d 792, 796 (1957) ("enumeration of powers in a statute is uniformly held to forbid the things not enumerated").

Finally, of importance is that during the January, 1979 session the legislature amended the Home Rule Act by enacting Public Act 79-618, § 3, effective October 1, 1979. ⁷ This section specifically grants the power to subpoena to a board, commission, council, committee, or other agency which has been established by charter provision or ordinance to investigate allegations of...