Scalo v. Mandanici

• Decision Date: 18 September 1979
• Citation: 425 A.2d 1272,179 Conn. 140
• Court: Connecticut Supreme Court
• Parties: Richard S. SCALO et al. v. John C. MANDANICI et al.

Page 1272

425 A.2d 1272

179 Conn. 140

Richard S. SCALO et al. v. John C. MANDANICI et al.

Supreme Court of Connecticut.

Argued May 2, 1979.

Decided Sept. 18, 1979.

John J. McNamara, Bridgeport, with whom was Thomas W. Bucci, Bridgeport, for appellants-appellees (defendants).

Richard S. Scalo, pro se, appellee-appellant (named plaintiff).

Abraham I. Gordon, Bridgeport, for appellees-appellants (plaintiffs John Albertson et al.).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and PARSKEY, JJ.

PARSKEY, Associate Justice.

On January 23, 1978, the common council of the city of Bridgeport, pursuant to § 29 of the Bridgeport city charter, ¹ enacted an ordinance increasing the annual salaries of thirty-nine elected and appointed city officials. The ordinance went into effect on January 24, 1978, upon being signed by the mayor of the city. Salaries were thereafter paid in accordance with the new schedule ² in the ordinance.

On January 25, 1978, the plaintiffs, taxpayers and residents of the city of Bridgeport, instituted this action against the city of Bridgeport, John C. Mandanici, its mayor, and other city officials, ³ claiming that the ordinance was illegal and in violation of article eleventh, § 2, of the Connecticut constitution. The plaintiffs also claimed that the ordinance was ineffective in that the salary increases were not approved by the proper authority of the city of Bridgeport, as required by § 7-460 of the General statutes. ⁴ The plaintiffs sought a temporary injunction, a permanent injunction, an order declaring the ordinance unconstitutional, illegal and void, and an order directing the city to recover the additional money paid pursuant to the ordinance.

On February 14 and 15, 1978, the case was tried to the court, which found that the ordinance was not duly and legally enacted in that it had not been approved by the budget authority of the city of Bridgeport, which the court determined to be the city's board of apportionment and taxation. The trial court, in its memorandum of decision filed on March 23, 1978, ordered that an injunction should issue restraining payment of the salary increases and enjoining the retention of the increases already paid to those officials and employees pursuant to that ordinance. Judgment was rendered accordingly.

Thereafter, on March 28, 1978, the board of apportionment and taxation approved the ordinance and adopted a resolution transferring the necessary funds to the budget.

The city continued to pay salaries in accordance with the ordinance, and, upon application of the plaintiffs filed on April 7, 1978, the court issued an order to the defendants to show cause why they should not be found in contempt of court for failure to comply with the court's order of March 23, 1978. On April 13, 1978, after a hearing at which all parties were present, the defendants were held in contempt of court for violating the provisions of the injunction and were given two weeks to purge themselves by recovering the salary increases paid after January 24, 1978. On April 27, 1978, the court, based upon the action taken by the board of apportionment and taxation on March 28, 1978, terminated the injunction, effective retroactively to March 28, 1978. The court also vacated its finding of contempt since the salary increases paid between January 24 and March 28 had been recovered by the defendants.

The defendants have appealed from the judgment rendered for the plaintiffs on March 23, 1978, and from the court's finding of contempt made on April 13, 1978. The plaintiffs have filed a cross appeal from the March 23 judgment and from the court's order of April 27 terminating the injunction and vacating its order of contempt.

I DEFENDANTS' APPEAL

Preliminarily, we address the defendants' claim that the court erred in granting injunctive relief. The defendants claim that an essential prerequisite to injunctive relief is a finding by the court of irreparable harm and the lack of an adequate remedy at law. The court did find, however, that the ordinance was not legally enacted and, thus, payment of the salary increments was an unauthorized expenditure of city funds.

Where a municipal act or ordinance is declared invalid, legally ineffective or ultra vires, it is clear that a court of law may grant an injunction to prevent the illegal exercise of power; Whitney v. New Haven, 58 Conn. 450, 20 A. 666 (1890); and see Wadhams v. Torrington, 152 Conn. 454, 208 A.2d 549 (1965); Board of Education v. Ellington, 151 Conn. 1, 193 A.2d 466 (1963), and cases cited; and, generally, taxpayers have a right to maintain a suit to enjoin the enforcement of an invalid statute or ordinance where its enforcement will require the expenditure of public funds. 42 Am.Jur.2d, Injunctions, § 191; Mayor of City of Americus v. Perry, 114 Ga. 871, 40 S.E. 1004 (1902).

There is little dispute that the unauthorized disbursement of public funds by a municipality presents a situation which can best be remedied by an injunctive order. The payments, if continued, would be irretrievably lost, to the detriment of the plaintiffs and other residents and taxpayers of the city of Bridgeport. The trial court did not err in granting injunctive relief to the plaintiffs.

The defendants next assign error to the order of the court holding the defendants in contempt for failure to retrieve the salary increments paid to the thirty-nine employees, and for continuing to pay the salary increases after the court had rendered its judgment enjoining those payments. The defendants, having filed an appeal within eight days of the rendition of judgment, claim that the effect of the court's order was stayed pending their appeal to this court.

In light, however, of the court's order of April 27, 1978, vacating the contempt order, we need not reach this issue. It is well established that courts will not decide questions where there is no actual controversy or where no practical relief can follow from their determination. See Harkins v. Driscoll, 165 Conn. 407, 334 A.2d 901 (1973), and cases cited; Maltbie, Conn.App.Proc. § 21; 5 Am.Jur.2d, Appeal and Error, § 762. The contempt order in this case was clearly civil, its object being to coerce the defendants to comply with a lawful order of the court, and, in the absence of any showing of prejudicial collateral effects resulting from the order of contempt, the defendants have nothing to gain by our reaching this question. See United States v. Galante, 298 F.2d 72, 73 (2d Cir. 1962).

The defendants also challenge the court's conclusion that the board of apportionment and taxation is the budget authority of the city of Bridgeport. Section 7-460 of the General Statutes provides that "any municipality or subdivision thereof, through its legislative body, may fix the compensation or its officials and employees, subject to the approval of its budget authority. ..." The defendants claim that the statute was fully complied with upon approval of the ordinance by the city comptroller. We cannot agree.

In Bridgeport, the board of apportionment and taxation is the only authority with the power to levy taxes and set the final budget appropriations for the city. The comptroller does prepare and submit to the board an estimate of the amounts required by each department of the city government for the coming fiscal year, ⁵ but the board may, after public hearings, make any alterations in those estimates which it thinks are necessary. ⁶ It is the board which approves and adopts the final budget for the city and the lower court was correct in concluding that the board is the budget authority for the city of Bridgeport. It is apparent, therefore, that approval by the board of apportionment and taxation was needed for the ordinance to be duly enacted into law. This occurred on March 28, 1978.

II PLAINTIFFS' APPEAL

We next reach the issues raised by the plaintiffs on their cross appeal. The plaintiffs claim that: (1) the ordinance is in violation of the constitution of Connecticut, article eleventh, § 2; (2) the board of apportionment and taxation, as the budget authority for the city of Bridgeport, could not give retroactive approval for the implementation of the pay raises; and (3) the purported approval by the board of apportionment and taxation, which was given on March 28, 1978, could not validate the ordinance retroactive to January 24, 1978.

The Connecticut constitution, article eleventh, § 2, provides: "Neither the general assembly nor any county, city, borough, town or school district shall have power to pay or grant any extra compensation to any public officer, employee, agent or servant, or increase the compensation of any public officer or employee, to take effect during the continuance in office of any person whose salary might be increased thereby, or increase the pay or compensation of any public contractor above the amount specified in the contract." The plaintiffs contend that the plain language of this constitutional provision mandates reversal of the trial court's conclusion that the ordinance in question does not violate this provision of the constitution. We agree with the conclusion of the trial court.

The scope and purpose of this provision of the constitution ⁷ was exhaustively considered in McGovern v. Mitchell, 78 Conn. 536, 63 A. 433 (1906). The McGovern court "determined that the prohibition of the amendment exhausts itself in forbidding the payment or grant by the public bodies named therein of gratuities or extra compensation ... and does not forbid the establishment in the regularly ordained manner of compensation for future services at a sum larger than that already established." State ex rel. Marsh v. Lum, 95 Conn. 199, 205, 111 A. 190, 192 (1920). The court thus distinguished properly legislated salary increases for public employees and officials from gratuitous grants of compensation, and found the latter to be the evil at which the provision was aimed. The...