Farrel v. Town of Derby

• Decision Date: 30 December 1889
• Citation: 20 A. 460,58 Conn. 234
• Court: Connecticut Supreme Court
• Parties: FARREL et al. v. TOWN OF DERBY et al.

20 A. 460

58 Conn. 234

FARREL et al.

v. TOWN OF DERBY et al.

Supreme Court of Errors of Connecticut.

Dec. 30, 1889.

Case reserved from superior court, New Haven county.

The complaint in this case is as follows: "(1) The plaintiffs are residents and taxpayers of the town of Derby. (2) On the 30th day of November, 1888, the plaintiffs, together with many others, brought their petition to the general assembly of this state, at its January session, 1889, and a resolution was introduced into said assembly praying that the portion of said town of Derby known as the 'Borough of Ansonia,' together with outlaying districts as more fully appears by said petition and resolution, be set off from said town of Derby, and a new town constituted thereof. (3) Said petition and resolution are now pending before the general assembly. (4) Of the defendants Joel M. Wheeler, Sidney E. Gesner, and Erwin W. Webster are selectmen, and Chas. E. Clark treasurer, of said town of Derby. (5) The defendants have already wrongfully and illegally paid money from the treasury of said town, and threatened and intend to wrongfully and illegally pay additional sums of money from said treasury, to counsel and others, to oppose, before the general assembly, the proposed division of said town, as hereinbefore stated, using, in so doing, money paid into said treasury by the plaintiffs in common with others. The plaintiffs claim an injunction to restrain the defendants from paying directly or indirectly, or appropriating to be paid, any money from the treasury of said town to any person or persons to oppose before the general assembly, or the members thereof, the proposed division of said town of Derby as hereinbefore stated." The fourth paragraph of the answer is as follows: "The said Wheeler, as agent, and the said Wheeler, Gesner, and Webster, as selectmen of said Derby, acting in the name and behalf of said town, did retain and employ counsel to attend to several mutters and measures brought to, and pending before, said general assembly, affecting and concerning the interests of said town, and to do what could properly and legally be done by them to protect and advance the interests of said town, as the same should be affected as aforesaid, including in such employment the opposition by such counsel in behalf of said town to the granting of said petition and the passage of said resolution; and that they have made a payment from the treasury of such town on account of such employment, and intend to pay for all legitimate retainers, services, and expenses of such counsel rendered or incurred under said employment." To this paragraph of the answer there was a demurrer, on which the case was reserved for the opinion of this court.

V. Hunger and J. P. Kellogg, for plaintiffs. C R. Ingersoll, E. B. Gager, and W. H. Williams, for defendants.

CARPENTER, J. This is a complaint by certain residents and tax-payers of the town of Derby, praying for an injunction restraining the defendants from paying the charges of counsel, and other expenses, incurred in defending against the petition for the incorporation of the town of Ansonia. The controversy arises mainly under the fifth paragraph of the complaint and the fourth paragraph of the answer. The former is as follows: "The defendants have already wrongfully and illegally paid money from the treasury of said town, and threaten and intend to wrongfully and illegally pay additional sums of money from said treasury, to counsel and others, to oppose before said general assembly the proposed division of said town, as hereinbefore stated, using in so doing, money paid into said treasury by the plaintiffs in common with others." The paragraph of the answer referred to is as follows: "The said Wheeler, as the agent of said Derby, and the said Wheeler, Gesner, and Webster, as selectmen of said Derby, acting for and in the name and behalf of said town of Derby, did retain and employ counsel to attend to several matters and measures brought to, and pending before, said general assembly, affecting and concerning the interests of said town, and to do what could properly and legally be done by them to protect and advance the interests of said town, as the same should be affected as aforesaid, including within such retainers and employment the opposition by such counsel in the name and behalf of said town to the granting of said petition and the passage of said resolution; and that they have made a payment from the treasury of such town on account of such employment, and intend to pay for all legitimate retainers, services, and expenses of such counsel rendered or incurred under said employment." This paragraph of the answer is demurred to, in the first place, because "it is not alleged, nor does it appear by said answer, what the several matters and measures were that were pending before said general assembly." There are seven other causes of demurrer assigned, which may be summed up and expressed in the language of the plaintiffs' brief that the town has "no power to employ counsel to oppose before the general assembly the granting of a petition, or the passage of a resolution, dividing its territorial limits." It will be noticed that the answer expressly admits the precise thing, and all that the complaint alleges. The fact that it is included in "several matters and measures" not named, can neither enlarge the scope of the complaint nor destroy the effect of the admission. But, if necessary to specify the other "matters and measures," we think they are sufficiently specified for all the purposes of the answer. The complaint, in terms, only refers to the matter of dividing the town. While that may fairly include a division of the property, debts, burdens, etc., yet they are not named. The answer brings upon the record the petition and resolution, so that the court can see just what the legislature was asked to do'. In looking at the resolution we find that it embraces several distinct "matters and measures." If they were what the answer referred to, and they probably were, the first cause of demurrer has no foundation in fact.

We come then to the other causes of demurrer, which raise the main question, has the town, as such, the right and power to employ counsel and expend money in proper ways, in opposing the granting of the petition and the passage of the resolution? It will be observed that the question we are considering is not whether the town has a right to resist the sovereignty of the state in an attempt to change the territorial limits of the town. Had the state of its own motion, for reasons of public policy, taken steps to change the boundaries of the town, or abolish it altogether, the case presented would have been a very different one. But the attack was not made by the state from motives of policy, and in the interest of good government, but was made by certain parties who sought thereby to promote their own interests. The attack was not directed alone against other individuals who differed from them, but against the town as well. The end sought involved not only a dismemberment of the town in respect to territory and population, but also a division of its corporate property, a reduction of its grand list, an apportionment of its debts, liabilities, and burdens as to highways, bridges, paupers, and the like. In respect to these matters the town, and every tax-payer in the town, had an interest; and they and every one were duly cited to appear before the legislature that they might be heard. The proceeding was of an adversary nature, and the opposing parties were brought before the supreme tribunal of the state that the matter might be adjusted. Here, then, were all the elements of ordinary litigation,—a court having competent jurisdiction, parties in interest, and matters in controversy. The town then was not antagonizing the state, but was defending a cause against its equal, and only its equal, before an impartial tribunal. Nor should this case be confounded with those cases in which towns have exercised powers which more properly pertain to the functions of the state or the general government; such as Stetson v. Kempton, 13 Mass. 272, in which it was...