Tellier v. Zarnowski

• Decision Date: 08 January 1969
• Citation: 157 Conn. 370,254 A.2d 568
• Parties: Cyril TELLIER v. Alexander ZARNOWSKI et al.
• Court: Connecticut Supreme Court

Page 568

254 A.2d 568

157 Conn. 370

Cyril TELLIER v. Alexander ZARNOWSKI et al.

Supreme Court of Connecticut.

Jan. 8, 1969.

Thomas D. Clifford, Madison, for appellant (plaintiff).

James W. Marshall, Asst. Corp. Counsel, with whom, on the brief, was John W. Kline, Corp. Counsel, for appellees (named defendant and others); with him also, on the brief, was William J. Cousins, New Haven, for appellee (defendant Albert Andreoli).

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

ALCORN, Associate Justice.

The plaintiff, alleging that he is a resident and taxpayer of the city of West Haven, brought this action for a declaratory judgment and for incidental injunctive relief. The defendants are the mayor, the members of the West Haven city council the treasurer of the city, and Albert and Charles Andreoli, whose positions in the government or operations of the city are the subject of the declaratory judgment which is sought.

The substance of the plaintiff's claim is that Albert Andreoli was elected to the city council for a term beginning on January 1, 1966, and ending on January 1, 1968, and, during that term, was, in violation of the city charter, illegally appointed, by the mayor, chief mechanic of the town garage at an annual wage of $7392.52 and that thereafter Charles Andreoli was illegally elected to the council to fill a supposed vacancy therein created by the resignation of Albert Andreoli from the council when, in fact, no vacancy existed because the resignation was not submitted, pursuant to § 7-103 of the General Statutes, until after the purported election of Charles Andreoli.

As a result of these claimed illegal acts, the plaintiff alleged that he had suffered and would suffer irreparable damage and that he had no adequate remedy at law. This allegation was denied by all defendants. The declaratory judgment and the incidental relief sought by the plaintiff are stated in the footnote. ¹

The case was submitted to the trial court on a stipulation of facts without the presentation of any evidence. The court rendered a declaratory judgment in response to question 2 propounded by the plaintiff, declaring that the term of Albert Andreoli as a member of the council ended when he accepted the position of chief mechanic at the town garage. All other claims for relief were denied. The plaintiff has appealed from that judgment.

On the record before us we are confronted with the decisive question of the jurisdiction of the trial court to entertain the action. The question does not appear to have been raised in, or considered by, the trial court, but, since it is jurisdictional, it must be met now. Lewis v. Rosen, 149 Conn. 734, 735, 181 A.2d 592; McGee v. Dunnigan, 138 Conn. 263, 268, 83 A.2d 491; Felletter v. Thompson, 133 Conn. 277, 280, 50 A.2d 81.

A declaratory judgment will not be rendered on complaint of any person 'unless he has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to his rights or other jural relations.' Practice Book § 309(a). the denial by the defendants of the allegation in the complaint that, because of the alleged wrongful and illegal acts of the defendants, the plaintiff 'has suffered and will continue to suffer irreparable damage and has no adequate remedy at law' cast upon the plaintiff the burden of proving that allegation. That burden was not met.

An examination of the stipulated facts discloses that as to the plaintiff, there is no justiciable issue. The basic fact recited is that the plaintiff 'is a resident elector and taxpayer of the City of West Haven, and as such has an interest in all expenditures made by said City, and the funds acquired by it from taxation.' The remaining facts fail to show that the acts complained of endanger his 'rights or other jural relations.' We have previously alluded to the danger of allowing taxpayers' suits for declaratory judgments without limitation, pointing out that an action by a taxpayer does not lie merely to secure advice on the law. McGee v. Dunnigan, supra. The stipulated facts do not disclose whether any wages have been earned by or paid to Albert Andreoli as chief mechanic at the town garage, and there are no stipulated facts disclosing the source from which any wage payment to him would be made. There is no indication that the position of chief mechanic at the town garage was newly created for the benefit of Albert Andreoli or that the wage payment incident to it created any financial obligation on the city which had not already been legally provided for and which could be met without additional burden to any taxpayer. Nor does it appear that the relinquishment by Albert Andreoli of his council post for the mechanic's job affected the plaintiff in any way or caused...