Low v. Town Of Madison

• Decision Date: 14 July 1948
• Citation: 60 A.2d 774,135 Conn. 1
• Parties: LOW et al. v. TOWN OF MADISON et al.
• Court: Connecticut Supreme Court

135 Conn. 1

60 A.2d 774

LOW et al.

v.TOWN OF MADISON et al.

Supreme Court of Errors of Connecticut.

July 14, 1948.

Appeal from Superior Court, New Haven County; Mellitz, Judge.

Action by William W. Low and others against the Town of Madison and others for an injunction against use of certain lands in the town except in accordance with town zoning regulations applicable to residence districts and a judgment declaring an amendment of such regulations placing the lands in a business district invalid. A judgment of nonsuit was set aside, and from a judgment for defendants after a retrial of the issues to the court, plaintiffs appeal.

Error, judgment set aside, and case remanded with direction.

Curtiss K. Thompson, of New Haven, for appellants.

Samuel A. Persky, of New Haven (Lyman H. Steele, of New Haven, on the brief), for appellees.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and ALCORN, JJ. (Judge Howard W. Alcorn of the Superior Court sat for Justice Dickenson).

ALCORN, Judge.

In this action, the plaintiffs sought an injunction against any use of certain lands in the town of Madison owned by Max Fabricant and Aldene Day Fisher except in accordance with the zoning regulations of the town applicable to a residence district, and, by amendment, a judgment declaring that a purported amendment to the zoning regulations placing the lands in question in a business district was invalid. From a judgment for the defendants and declaring the amendment valid, the plaintiffs have appealed. The question decisive of the appeal is: Was the amendment validly adopted? The facts found relevant to this issue are not attacked, but we add thereto one fact requested by the plaintiffs.

With the addition noted, it appears that on June 26, 1947, the zoning commission of the town of Madison gave notice of a public hearing, called for July 8, 1947, on the application of Aldene Day Fisher to have a certain area, including her property, changed to a business zone from a residence zone, which it had been since the original adoption of zoning in the town in 1934. The zoning commission of the town of Madison consisted of five members, one of whom was George Fisher, husband on the applicant. She and her husband had, for several years, occupied as a home a dwelling house situated on land immediately west of the land involved in the application. The hearing upon Mrs. Fisher's application was held as scheduled on July 8, 1947, and her husband sat as a member of the zoning commission. Objection to the application was made at the hearing by occupants of adjoining properties, and thereafter, on July 15, 1947, property owners of 20 per cent or more of the area of the lots directly opposite the property described in the application filed a written protest with the zoning commission. The trial court has found, and counsel conceded in argument, that because of the protest the application could be granted only by unanimous vote of the zoning commission. General Statutes, Cum.Sup.1939, § 132e; Strain v. Mims, 123 Conn. 275, 281, 193 A. 754. The zoning commission did not act upon Mrs. Fisher's application on the night of the public hearing and subsequently was informed by her husband, a member of the commission, of the use which the applicant, his wife, proposed to make of the property if her application was granted. Thereafter, on July 15, 1947, the zoning commission adopted an amendment to the zoning regulations, to become effective August 1, 1947, in effect granting Mrs. Fisher's application. Her husband sat as a member of the zoning commission at that meeting and voted in favor of her application. Only by virtue of his vote did the unanimous granting of the application by the zoning commission become possible and operative.

A principal claim by the plaintiffs is that, since the application could not be granted unless all members of the zoning commission voted in favor of it, the fact that the applicant's husband participated in the vote rendered it invalid. The defendants contend that Mr. Fisher was not disqualified by the relationship which existed and, furthermore, that the duty imposed upon him gave him no choice but to vote in a situation requiring unanimity. The claim that Mr. Fisher had a duty to vote does not require discussion. His wife's property have been in a residence zone some thirteen years. She could have deferred her application until her husband was no longer a member of the zoning commission. If greater urgency existed he could have resigned.

The question of controlling importance is that of his disqualification to act. Much of the defendants' argument is based upon the premise that only pecuniary interest, direct or indirect, is sufficient to constitute a disqualifying cases. Upon that basis the parties take issue as to whether or not the relationship of husband and wife is such that the husband could be said to have a pecuniary interest in the wife's application in this case. Pecuniary interest lies at the foundation of many of the reported decisions. Buffington Wheel Co. v. Burnham, 60 Iowa 493, 496, 15 N.W. 282; Smith v. Centralia, 55 Wash. 573, 577, 104 P. 797; Arbogast v. Shields, 123 W.Va. 167, 173, 14 S.E.2d 4; dicta, Daly v. George S. & F. R. Co., 80 Ga. 793, 799, 7 S.E. 146, 12 Am.St.Rep. 286. Other decisions involve statutes or charter provisions. Woodward v. Wakefield, 236 Mich. 417, 210 N.W. 322; Sturr v. Borough of Elmer, 75 N.J.L. 443, 445, 67 A. 1059; Haislip v. White, 124 W.Va. 633, 641, 22 S.E.2d 361; Githens v. Butler County, 350 Mo. 295, 165 S.W.2d 650; Nuckols v. Lyle, 8 Idaho 589, 70 P. 401; Clark v. Utah Construction Co., 51 Idaho 587, 593, 8 P.2d 454; Thompson v. School District No. 1, 252 Mich. 629, 233 N.W. 439, 74 A.L.R. 790. In other cases a distinction has been drawn between a legislative process on the one hand and what is variously described as a quasijudicial, ministerial or administrative proceeding on the other, and courts have held that in instances found to be legislative they could not inquire into the motives of the enacting body and that personal interest does not void its action. Moore v. Ashton, 36 Idaho 485, 492, 211 P. 1082, 32 A.L.R. 1512; Steckert v. East Saginaw, 22 Mich. 104, 112; Topeka v. Huntoon, 46 Kan. 634, 651, 26 P. 488. Certain of the cases relied upon by the defendants fall within this class. Topeka v. Huntoon, supra; Steckert v. East Saginaw, supra; Buffington Wheel Co. v. Burnham, supra.

Whatever the reasons assigned in other jurisdictions for finding disqualification or lack of it in public officers in other than judicial positions, we have not adopted personal pecuniary interest as the conclusive test. In situations in which the interest was shown to be pecuniary we have held it to disqualify. Woodbridge v. Raymond, Kirby 279; Barker v. Wales, 1 Root 265; Lyon v. Lyon, 2 Root 203; Fairbanks' Case, 2 Root 386; Gallup v. Tracy, 25 Conn. 10, 17. We have, however, from the earliest days demanded a standard in public office measured by considerations of policy in which personal pecuniary interest may be only secondarily or incidentally involved. Consequently, under a statute calling for action by indifferent freeholders, we have held disqualified an appraiser on an execution who was a tenant of the debtor, Mitchell v. Kirtland, 7 Conn. 229; a nephew by marriage of the plaintiff, Fox v. Hills, 1 Conn. 295, 300; or an uncle of the creditor's wife, Tweedy v. Picket, 1 Day 109. We have held the relationship of brother-in-law a disqualification in a function judicial in nature. Stoddard v. Moulthrop, 9 Conn. 502, 507. We have reached a like conclusion as regards the relationship of brother, Sturges v. Peck, 12 Conn. 139, 141; but we have not so held in a matter considered legislative in its nature, Groton v. Hurlburt, 22 Conn. 178, 190. We have denied a member of a municipal board the power to cast the deciding vote to elect himself clerk of his board, State ex rel. Bergin v. Goodrich, 86 Conn. 68, 71, 84 A. 99; see also State ex rel. Oakey v. Fowler, 66 Conn. 294, 298, 32 A. 162, 33 A. 1005; and we have discountenanced the entertainment of a committee of court by a litigant. Beardsley v. Washington, 39 Conn. 265, 268. We have refused to allow a magistrate authorized to sign writs to issue process in his own case. Doolittle v. Clark, 47 Conn. 316, 320. For situations in which we have found no disqualification, see State ex rel. Rylands v. Pinkerman, 63 Conn. 176, 192, 28 A. 110, 22 L.R.A. 653; Clyma v. Kennedy, 64 Conn. 310, 317, 29 A. 539, 42 Am.St.Rep. 194; Casmento v. Barlow Bros. Co., 83 Conn. 180, 182, 76 A. 361.

To avoid impairing confidence in legal tribunals, we have discountenanced a statutory committee's employment of the surveyor and agent of one of the parties to locate a disputed boundary. Carney v. Wilkinson, 67 Conn. 345, 347, 35 A. 261. With respect to the entertainment of a committee where in fact no improper conduct upon the committee's part was disclosed, we nevertheless said: ‘The acceptance of such special attentions we regard as objectionable, even where they produce no effect whatever upon the minds of any of the committee, as tending to create a distrust of the committee in the minds of the other party, and a suspicion of unfairness in the decision of the committee where finally adverse to them. It is far better therefore that no room be given for...