Rothkopf v. City of Danbury

• Citation: 156 Conn. 347,242 A.2d 771
• Court: Supreme Court of Connecticut
• Decision Date: 16 April 1968
• Parties: Sarah ROTHKOPF et al. v. CITY OF DANBURY et al.

Page 771

242 A.2d 771

156 Conn. 347

Sarah ROTHKOPF et al. v. CITY OF DANBURY et al.

Supreme Court of Connecticut.

April 16, 1968.

Harry Cohen, New Milford, for plaintiffs.

Louis A. DeFabritis, Danbury, with whom was Daniel T. Eberhard, Danbury, for defendants.

Richard L. Nahley, Corp. Counsel, for defendants Arconti and others.

Before ALCORN, HOUSE, COTTER, THIM and COVELLO, JJ.

HOUSE, Justice.

This complaint in four counts was brought by three plaintiffs who challenge the legality of the government of the city of Danbury, claiming that the procedure by which the former town and city of Danbury were consolidated was unconstitutional and illegal. Specifically, they seek a declaratory judgment determining the constitutionality of §§ 7-195 through 7-201 of the General Statutes, commonly known as the Home Rule Act, and the constitutionality and legality of a consolidation ordinance enacted pursuant to that act consolidating the governments of the town and city of Danbury. In addition they seek a mandatory injunction directing the defendants to restore the governments of the town and city as they were constituted prior to January 1, 1965, the effective date of the consolidation.

A prior action in which two of the present three plaintiffs joined and which sought essentially the same relief was brought in December 1963. See A-444 Rec. & Briefs 564. That case was referred to a state referee for a finding of facts, and his report was accepted by the Superior Court, which, however, dismissed the case for lack of jurisdiction upon a determination by the court that the plaintiffs had no standing to maintain a declaratory judgment action to challenge either the constitutionality of the Home Rule Act or the validity of the Danbury consolidation ordinance. Id., back of p. 580. On appeal we found it unnecessary to discuss the validity of the ratio decidendi of the trial court since it was obvious that the defendants were entitled to judgment because it did not appear that all persons having an interest in the subject matter of the complaint had been made parties to the action or had been given reasonable notice of it, and accordingly the plaintiffs had failed to comply with that condition precedent to the bringing of an action for a declaratory judgment. Practice Book § 309(d); Wenzel v. Town of Danbury, 152 Conn. 675, 677, 211 A.2d 683.

Following that decision the present action was instituted, and the plaintiffs obtained a court order, pursuant to § 52-105 of the General Statutes, authorizing the plaintiffs to prosecute the action on behalf of all interested persons similarly circumstanced and the defendants to defend the action for the benefit of all parties who may have an interest in defending against it.

After the pleadings were closed, the parties entered into a stipulation of facts and requested that the court reserve the action for the advice of this court on three questions. ¹ The request was granted, and the case is before us on this reservation.

There are several impediments to our consideration of the questions reserved. A trial court or judge cannot confer jurisdiction on this court merely by reserving questions for our advice. Hoblitzelle v. Frechette, 156 Conn. --, 240 A.2d 864. Although the stipulation of the parties represents that an answer by this court to those questions 'will enable the Superior Court to enter judgment without further proceedings,' we note that the defendants filed an answer pleading res judicata, which the plaintiffs denied by their reply. This issue still remains to be determined, and, if it should ultimately be determined in favor of the defendants, an answer to the reserved questions would be unnecessary, and the advice of this court would not enter into a decision of the case. It accordingly appears that the reservation is premature. Practice Book § 738; see Barr v. First Taxing District, 147 Conn. 221, 223, 158 A.2d 740.

Also, the first two questions are too broadly framed. 'Questions in a reservation should be so stated that each will present a definite point of law and the court may give to each a categorical or very definite answer.' Second National Bank v. Montesi, 144 Conn. 311, 315, 130 A.2d 796, 798; Barnes v. City of New Haven, 140 Conn. 8, 11, 98 A.2d 523; Ericson v. Childs, 124 Conn. 66, 82, 198 A. 176, 115 A.L.R. 907. Without reference to any specific constitutional provision or to any specific provision of the statutes or of the consolidation ordinance or to the possible illegal impact of any of them upon any specific right of any of the plaintiffs, the questions seek and opinion as to whether the Home Rule Act and the Danbury consolidation ordinance are generally unconstitutional or illegal 'in whole or in part' for any reason whatsoever. There is no suggestion in either of the questions as to which of the many provisions of the constitutional are claimed to be applicable or for what reason the consolidated ordinance might be illegal or unconstitutional. 'A statute may operate in a manner consistent with constitutional requirements when applied to one set of circumstances, although as to another it may produce a result which makes its operation unconstitutional.' State v. Sul, 146 Conn. 78, 81, 147 A.2d 686, 688; State v. Doe, 149 Conn. 216, 230, 178 A.2d 271; Cedar Island Improvement Assn. v. Clinton Electric Light & Power Co., 142 Conn. 359, 114 A.2d 535. As framed, the questions seek an answer stating whether for any reason the Home Rule Act and the Danbury consolidation ordinance are void for all purposes. They do not each present a definite point of law to which the court can give a categorical or very definite answer.

We are also confronted by an important jurisdictional question raised by the defendants. It is their contention that the plaintiffs have no standing to challenge the legal status of a municipality and that the constitutional or legal existence of a Connecticut municipality cannot be attacked by a private person or corporation. The plaintiffs' right to seek a declaratory judgment involves the jurisdiction of the court to entertain the action and may be raised at any time. Riley v. Liquor Control Commission, 153 Conn. 242, 248, 215 A.2d 402; McGee v. Dunnigan, 138 Conn. 263, 268, 83 A.2d 491.

The facts contained in the stipulation furnish the factual basis for the jurisdictional claims of the parties. Prior to January 1, 1965, and since its formation by the Court of General Session in 1687, the town of Danbury existed as a municipality. Prior to January 1, 1965, the city of Danbury existed as a municipal corporation specially chartered by the General Assembly and was located within a portion of the territorial limits of the town of Danbury. The legislative bodies of the town and the city, purportedly acting pursuant to chapter 99 of the General Statutes and particularly §§ 7-195 and 7-197, each approved a resolution to consolidate the town and the city, and on October 15, 1962, a consolidation commission was appointed. This commission found it desirable to seek additional statutory authority, and the General Assembly at its 1963 session enacted Public Act No. 18, entitled 'An Act Concerning Consolidation of Local Units of Government Under the Home Rule Act,' which was approved and became effective on April 22, 1963. This act is now incorporated into the General Statutes as §§ 7-198 and 7-200 of the General Statutes, revised to 1966.

On August 6, 1963, the consolidation commission approved the text of a proposed consolidation ordinance. On September 24, 1963, a referendum was held in the town and the city on the question of the adoption of the proposed ordinance. A total of 11,127 votes were cast, of which 5608 were recorded as voting 'Yes' and 5519 as 'No'. The results were certified by the town clerk on January 30, 1964, and were filed in the office of the secretary of state on February 3, 1964. The consolidation ordinance as adopted established new offices, departments, boards, commissions, or other agencies and otherwise revised the charter of the city. It has become operative, thereby changing the governmental structures of the town and the city, dissolving the town meeting-board of selectmen form of government and causing the consolidated city of Danbury to exercise its jurisdiction over the territory of the town of Danbury.

The plaintiff Sarah Rothkopf was a resident, taxpayer and elector of both the town and the city of Danbury as each existed prior to January 1, 1965, and now has the same status in the consolidated city. The plaintiff William W. Wenzel was a resident, taxpayer and elector only of the town as it existed prior to consolidation and now has the same status in the consolidated city. The plaintiff Roger L. Ferris was and remains a resident and elector of the town of Redding and owns real estate in Danbury.

The plaintiffs alleged that the consolidation would result in future expenditures from the general fund, increase their taxes, be a waste and diversion of the taxpayers' funds and cause them irreparable damage. Each of these allegations was denied by the defendants. The stipulation of facts is silent as to any effect of the consolidation on taxes payable by Ferris. It discloses that the consolidation results in a reduction of taxes for some persons, including Mrs. Rothkopf, but that it 'will result in expenditures from the general fund and an increase in taxation for certain of said taxpayers such as William Wenzel.' An exhibit incorporated in the stipulation indicates that taxes on property owned jointly by Wenzel and his wife increased from $252.12 on the list of 1963 to $336.16 on the list of 1964.

The plaintiffs claim that they have standing to prosecute this action because of their liability to taxation, 'in the light of their rights as voters,' and 'in view of their direct voice in the affairs of town government.' In the case of Wenzel, they rely on the authority of such cases as Bassett v....