Groton & Stonington Traction Co. v. Town of Groton

• Citation: 160 A. 902,115 Conn. 151
• Parties: GROTON & STONINGTON TRACTION CO. v. TOWN OF GROTON.
• Decision Date: 14 June 1932
• Court: Supreme Court of Connecticut

160 A. 902

115 Conn. 151

GROTON & STONINGTON TRACTION CO. v. TOWN OF GROTON.

Supreme Court of Errors of Connecticut.

June 14, 1932

Appeal from Superior Court, New London County; Carl Foster, Judge.

Action by the Groton & Stonington Traction Company against the Town of Groton to recover an installment on a contract for transportation of high school students and for a declaratory judgment. A demurrer to the complaint was sustained, and judgment rendered for defendant on the pleadings, and plaintiff appeals.

Arthur T. Keefe, of New London, for appellant.

Benjamin H. Hewitt, of Mystic, for appellee.

Ernest L. Averill, Deputy Atty. Gen., and Warren B. Burrows, Atty Gen., amici curiæ .

Argued before MALTBIE, C.J., and HAINES, HINMAN, and BANKS, JJ. ^[1]

HINMAN, J.

The complaint alleged that in June, 1931, and for a long time prior thereto, the defendant town maintained a high school the affairs and management of which were administered through the high school committee. At a special town meeting held on June 24, 1931, it was voted that, pursuant to the provisions of section 852 of the General Statutes, the high school committee be authorized and instructed to provide for the transportation to and from the high school of pupils residing within the limits of the town, the expenses of such transportation to be included annually in the maintenance cost of the high school. It was also voted that the matter of such transportation be taken care of by the high school committee and that the committee advertise for bids therefor. Bids were accordingly called for, and on July 8, 1931, the high school committee voted to accept the bid of the plaintiff, and it was notified to that effect. Subsequently, on September 1st, the board of education voted to " assume the commitment by the high school committee with the Groton and Stonington Traction Company under said vote, before the opinion was received that the high school committee was abolished by law." It was also voted to request the board of finance of the town to include in its annual appropriation budget to be presented and to be voted upon at the next annual meeting an item of $10,200 to cover the defendant's commitment for payment to the plaintiff for transportation, but the board of finance failed, neglected, and refused to do so, and by reason thereof no appropriation for that purpose was made by the annual town meeting. On September 9, 1931, the plaintiff commenced and has continued to furnish transportation of pupils to and from the high school, and on October 9, 1931, presented its bill for $1,239.78, being for the period from September 9th to date, but the defendant refused to pay the same on the ground that, " owing to the failure of the town board of finance to provide an appropriation for high school transportation the board of selectmen have no funds available to pay for any high school transportation."

The defendant demurred to the complaint on the ground that it appears therefrom that the board of finance neglected and refused to make an appropriation to pay the plaintiff, and it does not appear that any other appropriation for that purpose was or could be made, and this demurrer was sustained.

In this court, as in the trial court, possible procedural informalities were waived, and the matter was presented and is determined on its merits.

The demurrer is based upon the proposition that, as it appears from the complaint that the board of finance of the defendant town neglected and refused to incorporate in its estimate an item covering the expenditures under the contract sued upon, and the town, in consequence, made no appropriation for this purpose, there is no liability on the part of the town. No question is made by the demurrer that the vote of the town at the special meeting of June 24, 1931, was within the authority then expressly vested in the town by section 852 of the General Statutes, of that the subsequent proceedings of the high school committee were in accordance with the vote of that meeting intrusting to the committee the matter of obtaining bids for and providing for transportation of high school pupils. No contention is advanced that the action of the board of education on September 1, 1931, did not suffice to create, by ratification, and effectuate the agreement with the plaintiff previously attempted to be made by the high school committee, although it was afterward discovered that, upon the taking effect of chapter 249 of the Public Acts of 1931 (title 8, General Statutes. Cum. Supp. 1931), the office of high school committee in towns (including the defendant) in which separate school districts are maintained was abolished, and control of secondary schools was transferred to and vested in the board of education. General Statutes, Cum. Supp. 1931, § 176a. Opinion of Attorney General, July 20, 1931. The same public act also conferred the power to provide transportation for pupils residing in the town where a high school is maintained upon the board of education, instead of the town by its vote as theretofore provided by section 852 of the General Statutes, section 97a, Cum. Supp. 1931 (quoted in a footnote).^[2] The demurrer did not question that the authorization of transportation was within this expressly conferred statutory power of the board ofeducation when it assumed the commitment which had previously been authorized by town vote. To this extent, at least, the requisites to bind the town appear to be present. Lucier v. Norfolk, 99 Conn. 686, 695, and cases cited, page 696, 122 A. 711. The contention is that, notwithstanding, the town may not be held liable for the agreed compensation, unless provisions therefor has been made by an appropriation for that purpose.

It has been held that in the maintenance and management of public schools the school committee of board of education is the agent, not of the town but of the law, and so, in matters pertaining thereto-including provision for transportation of pupils-is not subject to the control of the town. State ex rel. Huntington v. Huntington School Committee. 82 Conn. 563, 566, 74 A. 882; Newton v. Hamden, 79 Conn. 237, 240, 64 A. 229; Lucier v. Norfolk, supra, page 695 of 99 Conn., 122 A. 711; McDonnell v. New Haven, 99 Conn. 484, 489, 121 A. 824. We deem it sufficient for present purposes, however, that the contract, its purposes and provisions, were within the statutory powers of the board of education, exercised in conformity to the will of the town expressed by the antecedent vote in town meeting.

The neglect or omission to provide money therefor does not absolve a public corporation from the duty to discharge a statutory liability, or from performing a judgment, or relieve it from liability for its torts, or, ordinarily, for expenditures involved in action by the municipality itself upon subjects not foreseen when the annual appropriations are made. New Milford v. Litchfield County, 70 Conn. 435, 439, 39 A. 796; Williams, State's Attorney, v. New Haven, 68 Conn. 263, 272, 36 A. 61; Cook v. Ansonia, 66 Conn. 413, 423, 34 A. 183; Baldwin v. Norwalk, 96 Conn. 1, 7, 112 A. 660; Whitney v. New Haven, 58 Conn. 450, 461, 20 A. 666; Cummings v. Looney, 89 Conn. 557, 95 A. 19; State v. Staub. 61 Conn. 553, 23 A. 924. It would be " a flagrant departure from all principle" if a contract which a municipal corporation has the power and authority to make and has voted to enter into could not be enforced against it. McLoud v. Selby, 10 Conn. 389, 394, 27 Am.Dec. 689. The question presented by the demurrer is whether the effect of the statutes concerning town boards of finance (General Statutes, § § 413 to 421, amended Cum. Supp. 1931, § § 40a, 41a) is such that this contract may be and was rendered unenforceable by the refusal of the board of finance of the defendant town to recommend, and thereby permit to be made by the town, an appropriation for the compensation thereunder.

Section 418, as amended, provides the method of making of appropriations for expenses of towns in which town boards of finance have been established; that the board hold a public meeting at which any person desiring to have included in the budget any expenditures on account of activities of the town for the ensuing fiscal year may request this to be done; that a subsequent meeting of the board be held at which all such proposals are to be considered; that thereafter an itemized estimate of the expenditures for such year shall be published; that the board shall submit this estimate, with other information, to the annual town meeting with its recommendations; that this report shall then be acted upon and such specific appropriations made as may seem advisable, " but no appropriation shall be made exceeding in amount that for the same purpose recommended by the board and no appropriation shall be made for any purpose not recommended by the board." This section then provides that, after the grand list has been completed, the board shall lay a tax which shall be sufficient, with the other estimated revenue of the town, to pay the expenses of the town for the year. Provision is also made for further appropriations upon recommendation of the board of...