State v. Sixth Taxing Dist.

• Decision Date: 23 February 1926
• Citation: 104 Conn. 192,132 A. 561
• Court: Connecticut Supreme Court
• Parties: STATE EX REL. BRUSH v. SIXTH TAXING DIST. ET AL. BRUSH ET AL. v. ROBINS ET AL.

132 A. 561

104 Conn. 192

STATE EX REL. BRUSH v. SIXTH TAXING DIST. ET AL.

BRUSH ET AL. v. ROBINS ET AL.

Supreme Court of Errors of Connecticut.

February 23, 1926

Case reserved from Superior Court, Fairfield County; John W Banks, Judge.

Information in the nature of quo warranto by the State, on the relation of Joel L. Brush, against the Sixth Taxing District of the City of Norwalk, Thomas Robins, and others, to determine by what authority defendants claim to use and enjoy the rights and franchises of such District and to declare the act creating it unconstitutional, and suit therein by relator and others to enjoin defendants from levying taxes or assessments on plaintiffs, or incurring debts or obligations against them or their property as inhabitants and property owners in such District. Reversed on an agreed statement of facts for advice of Supreme Court of Errors and argued together by stipulation of parties. Questions answered.

Edward J. Quinlan, of Norwalk, for plaintiffs.

William F. Tammany and John J. Cuneo, both of South Norwalk, for defendants.

Argued before WHEELER, C.J., and CURTIS, KEELER, MALTBIE, and HAINES, JJ.

WHEELER, C.J.

The joining of the commissioners of the Sixth district as parties to the action brought by the state on the relation of Brush was improper. The legality of the existence of the district could be tried by an information against the district, but not in an action upon an information against the persons elected as commissioners of the district, since an action in their behalf implies that the office held by them is a legally existing office. State ex rel. Woodford v. North, 42 Conn 79, 86. We point out the irregularity in the interest of good practice. It does not affect the questions which are reserved for our advice, viz.: Whether the act creating this district is unconstitutional and void because it denies to the inhabitants of the district the equal protection of the law and due process of law. These constitutional guaranties are found in article 1, § § 1, and 12, of our Constitution, and in the Fourteenth Amendment to the Constitution of the United States. Their meaning in our Constitution has not been restricted by the federal Constitution. In each they have a like meaning. In State v. Travelers' Ins. Co., 47 A. 299, 304, 73 Conn 255, 270, 57 L.R.A. 481, referring to Slaughter House Cases, 16 Wall. 36, 21 L.Ed. 394, and Maxwell v. Dow, 20 S.Ct. 448, 494, 176 U.S. 581, 44 L.Ed. 597, we say:

" The reasoning of these two leading cases excludes the idea that the Fourteenth Amendment placed any new limitations on the power of the people of the states to determine their civil rights by their fundamental law."

The amendment to the charter of the city of Norwalk creating the sixth taxing district will be better understood if we have before us the method of creation and the purposes of the five districts existing prior to this amendment. The town of Norwalk was consolidated with the cities of Norwalk and South Norwalk and the East Norwalk Fire District and the city of Norwalk incorporated. Special Laws 1913, p. 1038. Speaking generally and without attempting to go into detail, by this act the city was divided into five taxing districts: The first comprises the territory constituting the former city of Norwalk, and the act provides that all the inhabitants and property within the limits of this district shall be liable to taxation to defray any burdens, expenses, and liabilities of the former city of Norwalk, and in addition such other liabilities as it may incur under the act. The second comprised the territory constituting the former city of South Norwalk, and all the inhabitants and property within the limits of this district, the act provides, shall be liable to taxation to defray the burdens and expenses of the former city, and such additional liabilities as the district may become liable for under the act. The third comprises the territory constituting the former East Norwalk fire district, and all the inhabitants and property within the limits of the district, the act provides, shall be liable to taxation to defray any burdens. expenses, and liabilities of the former fire district, and such other liabilities as the district may incur under the act. The fourth comprises the territory constituting the first, second, and third wards which are the first, second, and third taxing district. The city shall maintain at the expense of the fourth district, the act provides, the sewer systems, and the police and fire departments as existing in the former cities of Norwalk, South Norwalk, and the East Norwalk fire district, until the city shall establish and maintain a police and fire department for this district. The fifth comprises all the territory of the city; that is, of the town of Norwalk. All the property of the town is transferred by the Act to the city, and section 6 of the act provides:

" Sec. 6. All burdens and expenses imposed by law upon the town of Norwalk for the conduct of elections, the care and support of poor, insane, and imbecile persons, the construction and maintenance of highways and bridges, the support of schools, the construction and maintenance of public buildings, the prosecution of criminal offenses, the payment of principal and interest of the town debt, the payment of state, military, and county taxes, and for all other purposes for which towns are liable, shall be borne by said city and shall be payable out of the treasury of said city, and said city shall hereafter perform all the duties and have and exercise all the rights, powers, and privileges conferred upon said town, and all laws imposing such duties, burdens, and expenses and conferring such rights, powers, and privileges upon said town are hereby made applicable to said city."

The first, second and third districts comprise the more settled parts. The fifth comprises the entire city including the territory covered by the first, second, and third districts, as well as the territory of the town lying outside of these districts. It is apparent from the list of burdens imposed upon the entire city under section 6 that civic improvements such as lighting, sewers, and the like were not provided for the fifth district in this act. It included the outlying portions of the town in which the demand or necessity for such public improvements had either not yet arisen, or not become urgent. Eight years later the General Assembly created a sixth taxing district out of a part of the fifth district which lay southerly of the territory of the second district or the former city of South Norwalk. All the electors within the territorial limits of the district are, by the act, constituted a body politic and corporate for the purpose of contracting for street lighting, sewers, or any other needed civic improvements including the Rowayton public library. Section 3 of the act (Special Laws 1921 p. 660) provides:

" All inhabitants and property within the limits of the sixth taxing district shall be liable to taxation to defray any expenses or liability said taxing district may incur under the provisions of this act."

In general, the creation of the sixth taxing district is in form and manner substantially that of the first, second, and third districts. " The legislative power of this state" is vested by our Constitution in the General Assembly. Art. 3, § 1. By this article Connecticut placed her entire legislative power in the hands of the General Assembly, subject only to the limitations that it should be exercised in a manner " consistent with a Republican form of government," and in conformity to the Constitution of Connecticut and of the United States. Allyn's Appeal, 71 A. 794, 81 Conn. 534, 536, 23 L.R.A. (N. S.) 630, 129 Am.St.Rep. 225.

The act we are asked to declare unconstitutional involves the exercise of the taxing power. " The taxing power is an inherent attribute of sovereignty and as such unlimited in character and scope, save as limitations may be self-imposed. Under our form of government its exercise is vested in the legislative department which may exercise it for lawful purposes in its discretion both as regards the choice of subject-matter of taxation and the extent and manner of the tax, save as constitutional limitations may intervene, and in the case of the states, save also as the property and agencies of the national government within their borders are not within the reach of their sovereignty." State v. Murphy, 98 A. 343, 345, 90 Conn. 662, 666.

The city of Norwalk had no inherent power. Its charter, of which this act was an amendment, was a delegation of power from the legislative body of the State. The General Assembly may create municipalities at will and divide their territory into taxing districts at will, subject only to the limitations of state and federal Constitutions. It may determine the area of territory to be included in the district, the improvements for which the district may levy taxes, and the area benefited by the improvements. " When the state court decides that municipal corporations within the territorial limits of the state are subject to the control of the state Legislature, and that its act in creating for certain purposes a new corporation, and merging therein five separate towns, was valid, this court cannot hold that the state court was mistaken in its construction of the state Constitution or in its declaration as to the extent of the power of the Legislature over municipal corporations neither can it be doubted that, if the state Constitution does not prohibit, the Legislature, speaking generally, may create a new taxing district, determine what territory shall belong to such district and what property shall be considered as benefited by a proposed...