Larke v. Morrissey

• Decision Date: 31 May 1967
• Citation: 155 Conn. 163,230 A.2d 562
• Parties: Richard T. LARKE et al. v. Gregory D. MORRISSEY et al.
• Court: Connecticut Supreme Court

Page 562

230 A.2d 562

155 Conn. 163

Richard T. LARKE et al. v. Gregory D. MORRISSEY et al.

Supreme Court of Connecticut.

May 31, 1967.

William L. Hadden, Jr., New Haven, for appellants (plaintiffs).

Charles H. Fischer, Jr. West Haven, with whom, on the brief, was Herbert D. Fischer, West Haven, for appellees (named defendant and others).

Thomas J. O'Sullivan, New Haven, for appellees (defendant Kircaldie and others).

Ralph G. Murphy, Asst. Atty. Gen., with whom, on the brief, were Harold M. Mulvey, Atty. Gen., and Walter T. Faulkner, Asst. Atty. Gen., for appellee (defendant state tax commissioner).

Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.

RYAN, Associate Justice.

This action is brought by the plaintiffs as members of the city council of the city of West Haven and as residents and taxpayers of the city of West Haven against the mayor of that city, the members of the West Haven board of finance, all the partners in Kircaldie, Randall and McNab, an accounting firm with a principal place of business in the city of New Haven, and John L. Sullivan, the tax commissioner of the state of Connecticut. The plaintiffs seek (1) a declaratory judgment determining whether the city council of West Haven is the budget-making authority of the city under the General Statutes and under the West Haven city charter; (2) a judgment declaring that the selection of the accounting firm of Kircaldie, Randall and McNab by the board of finance and the subsequent approval of that firm by the state tax commissioner was null and void; (3) an injunction restraining the accounting firm and certain of its members from performing or attempting to perform the duties of the independent public accountant for the city of West Haven for the fiscal year ending June 30, 1965; (4) an injunction restraining the tax commissioner from refusing to approve the accounting firm selected by the city council as the independent public accountant for the city of West Haven for the fiscal year ending June 30, 1965; and (5) other equitable relief. Upon the trial, the court heard no oral testimony, and the case was submitted on the admitted portions of the pleadings and on an agreed statement of facts. No finding of facts is necessary where this course in adopted. Postemski v. Watrous, 151 Conn. 183, 184, 195 A.2d 425; Gilman v. Joseloff, 135 Conn. 595, 596, 67 A.2d 551. The court made a limited finding reciting its conclusions and the claims of law of the parties.

Some of the facts stipulated by the parties are not essential to a determination of this case and have been omitted. The essential facts are as follows: The town of West Haven was created by special act of the General Assembly in 1921 (18 Spec. Laws 1067, No. 482), and, pursuant to that act, the board of finance was constituted the budget-making authority. 19 Spec. Laws 704, No. 205. In 1957, the town of West Haven adopted the representative town meeting form of government, and the board of finance continued to be the budget-making authority. In 1961, the town adopted a mayor-council form of government with a city charter which became effective on January 2, 1962. Under the charter, the board of finance consists of six members in addition to the mayor, who acts as chairman. The fiscal year in West Haven runs from July 1 to June 30 of each year. At a meeting held on March 4, 1965, the board of finance, claiming to be the budget-making authority of the city of West Haven, and acting through its chairman, the named defendant as mayor, notified the state tax commissioner that it had selected the firm of Kircaldie, Randall and McNab as independent public accountants to audit the records of the city of West Haven for the fiscal year ending June 30, 1965. On March 22, 1965, the city council selected the independent accounting firm of Hornstein, Multer and Carlson, of New Haven, to make the annual audit for the same year. On March 23, 1965, the city council, acting through its clerk, notified the tax commissioner of its selection of the accounting firm, but, because the tax commissioner had already approved the firm of Kircaldie, Randall and McNab on March 10, 1965, he advised the city council on April 21, 1965, that he would not approve the selection of Hornstein, Multer and Carlson. On the basis of the complaint, the answer, and the foregoing facts, the trial court denied the plaintiffs' claim for a declaratory judgment. The trial court also denied the claim for a permanent injunction on the ground that the plaintiffs had failed to sustain their burden of proving irreparable damage and a lack of an adequate remedy at law. The plaintiffs have appealed to this court from the judgment rendered.

The plaintiffs assign error in the court's refusal to render a declaratory judgment. In its memorandum of decision, the court denied the claim for a declaratory judgment on the ground that 'this matter can be decided by another form of action.' The court did not suggest what other form of action would be appropriate. 'The court will not render declaratory judgments upon the complaint of any person: * * * (c) where the court shall be of the opinion that the parties should be left to seek redress by some other form of procedure * * *.' Practice Book § 309. Our courts have a wide discretion in such matters. Brewster v. Brewster, 152 Conn. 228, 232, 206 A.2d 106; Lipson v. Bennett, 148 Conn. 385, 390, 171 A.2d 83; Holt v. Wissinger, 145 Conn. 106, 113, 139 A.2d 353; Herald Publishing Co. v. Bill, 142 Conn. 53, 58, 111 A.2d 4; Connecticut Savings Bank v. First National Bank & Trust Co., 133 Conn. 403, 410, 51 A.2d 907.

The present case involves a construction of certain sections of the Municipal Auditing Act (General Statutes (Rev. to 1966) c. 111) and the pertinent sections of the West Haven city charter. The Municipal Auditing Act requires that municipalities such as the city of Wast Haven shall have their accounts audited at least once annually by an independent public accountant selected by the budget-making authority of the municipality and that the accountant selected shall be approved by the state tax commissioner. General Statutes (Rev. to 1966) § 7-392. Copies of the audit report are to be filed with the budget-making authority of the municipality, with the town or city clerk and with the tax commissioner. § 7-393. The report of the audit is to be included in the annual report of such municipality. § 7-394. The tax commissioner is required to review the audit report and, if evidence of fraud or embezzlement is found, report such information to the appropriate state's attorney. § 7-395. In the instant case, the parties are in dispute as to the appointment of an independent public accountant as a result of disagreement and uncertainty as to the meaning of 'budget-making authority' as defined in § 7-391 of the General Statutes (Rev. to 1966) lin relation to the provisions of the West Haven charter. In consequence of this, no audit of the accounts has been made for the fiscal year ending June 30, 1965. 'The remedy by means of declaratory judgments is highly remedial, and the statute and rules should be accorded a liberal construction to carry out the purposes underlying such judgments.' Sigal v. Wise, 114 Conn. 297, 301, 158 A. 891, 893; Larkin v. Bontatibus, 145 Conn. 570, 575, 145 A.2d 133. The determination of the questions presented is of considerable public importance. The trial court was in error in refusing to render a declaratory judgment. This conclusion would, in most instances, require that the case be remanded to the trial court, but in view of the fact that the parties have submitted the matter on an agreed statement of facts, we can consider the questions involved in the interest of avoiding further delay which would follow a remand to the trial court.

In their prayer for relief, the plaintiffs seek a declaratory judgment determining whether the West Haven city council is the budget-making authority of the city under the General Statutes and under the West Haven city charter. Section 7-396 of the General Statutes (Rev. to 1966) provides as follows: 'The budget-making authority of any municipality shall file with the tax commissioner the name of the independent public accountant, designated to audit such municipality's records, at least ninety days before the end of the fiscal period of such municipality for which such audit is required. If any such budget-making authority fails to notify the commissioner of such designation before such ninety-day period, said commissioner may appoint an independent public accountant to audit such municipality's accounts for the preceding fiscal year, and the cost and expense of such audit or investigation shall be borne by such municipality.' Section 7-391 contains the following definition: "(B)udget-making authority,' as applied to towns, cities and boroughs, whether consolidated or unconsolidated, having boards of finance or other bodies or committees charged with preparing the budget, whether created under the general statutes or by special acts, means the board of finance or such other body or committee; as applied to towns having neither boards of finance nor such other bodies or committees, means the board of selectmen; as applied to cities having neither boards of finance nor such other bodies or committees, means the mayor * * *.'

The plaintiffs urge that the budget-making authority in the city of West Haven is the city council. The named defendant and the defendant board of finance claim that it is the board of finance. The defendant tax commissioner claims that it is the board of finance with the mayor acting as chairman. An examination of the pertinent sections of the charter is required. The provisions concerning the budget are contained in chapter 26 of the charter, entitled 'Budget'. ¹ The function of the city council is to hold public hearings regarding appropriations for the ensuing year, to review the budget...