Whitmore v. City of Hartford

• Decision Date: 22 July 1921
• Citation: 96 Conn. 511,114 A. 686
• Court: Connecticut Supreme Court
• Parties: WHITMORE et al. v. CITY OF HARTFORD et al.

114 A. 686

96 Conn. 511

WHITMORE et al. v. CITY OF HARTFORD et al.

Supreme Court of Errors of Connecticut.

July 22, 1921

Case Reserved from Superior Court, Hartford County; William M Maltbie, Judge.

Suit by William F. Whitmore and others against the City of Hartford and others to restrain the city from carrying out certain resolutions of its court of common council ordering public works in said city, and to restrain the defendants, the Treasurer, the Tax Collector, and the Controller of said city, from drawing, certifying, or paying any order for the payment of money of said city under authority of said resolutions, or complying with any part thereof. Reserved by the superior court for the advice of the Supreme Court of Errors. Superior court advised to render judgment for defendants.

The admitted facts upon which are raised the questions of law presented for determination are the following:

(1) The plaintiff Allyn is an inhabitant, elector, and taxpayer of the city of Hartford. The plaintiff William F. Whitmore is a taxpayer, but not an inhabitant of the city. The plaintiff the Hartford Fire Insurance Company is a taxpayer, and located in the city.

(2) After preliminary proceedings in accordance with the charter and ordinances of the city, its court of common council on March 14, 1921, adopted resolutions, ordering a public work or improvement consisting of an extension of Ann street and the widening of South Ann street. These resolutions were approved by the mayor March 15, 1921. This action was begun on March 16, 1921.

(3) These resolutions have never been approved by a majority vote of a city meeting duly warned and held for that purpose; nor has any vote or resolution providing for an appropriation in connection with this public improvement been submitted to or approved by a city meeting.

(4) In accordance with the city charter and ordinances benefits were assessed and damages awarded for this public work. The damages awarded amounted to $485,022.79. The benefits assessed upon owners of specially benefited property in the area of assessment amounted to $460,130.10. Included in these assessments of benefits were three against the city on account of property which it owns, namely: On Jewell street, for $20,000; on Pearl street, for $5,428.57; and on Ann street, for $2,917.46; total, $28,346.03. These assessments were made in the same manner and on the same basis as assessments were made on property owned by individuals or private corporations. In addition, general benefits were assessed upon the city to the amount of $24,892.69.

(5) The city property on Jewell street is a strip of land 1,000 feet long, lying along Park river in Bushnell Park, a public park belonging to the city. Its property on Pearl street and its property on Ann street are occupied by fire-engine houses.

(6) The plaintiffs as taxpayers will have to bear a portion of the expense of this public work, which would be their respective shares of taxes sufficient to produce $53,238.72, upon the city's present grand list of more than $263,000,000.

(7) The amount of the assessment of benefits upon the city has been charged against the city, and if the city should proceed to pay the damages awarded in connection with this public work, the amount so charged will be paid by the city out of its treasury from an appropriation included in the annual budget for that purpose, and no additional tax levy is contemplated.

(8) Each of the plaintiffs has been assessed for benefits upon specially benefited property owned by him, and has taken an appeal therefrom in the manner provided by the city charter. These appeals are now pending.

(9) The proposed extension of Ann street and the widening of South Ann street, if carried out, would make a new main thoroughfare from the north end, to and beyond the center of the city, which would greatly benefit abutting and certain other property owners, and be a public improvement which has long been advocated and in contemplation.

(10) In connection with public works in the city of Hartford it has been the uniform practice to assess benefits against the city, on account of property owned by it and fronting upon the improvement or lying within the area of the assessment, in the same manner and at the same rate as assessments of benefits have been made against private owners in similar situation. City property so assessed has included public parks, an almshouse, a city hospital, burying grounds, the public market, pumping station, police station, and fire engine houses. But except in one or two instances, whenever the benefits thus assessed against the city in connection with the laying out or widening of a street have exceeded the amount limited in the charter provision hereinafter quoted, the resolution ordering the work or improvement has been submitted to a vote of a city meeting. It has not been the practice to submit to a city meeting any resolution of the court of common council ordering improved street pavement requiring an expenditure of more than the sum fixed by the charter.

(11) The defendant city officials intend to draw orders pursuant to the directions of the resolutions of the court of common council, and to pay the persons to whom damages were awarded the amounts specified in the assessment, and the mayor has issued his warrant for the collection of the several amounts of benefits assessed upon persons and lands specified in the assessment and not offset by damages.

(12) Many other property owners to whom damages were awarded and against whom benefits were assessed have taken appeals from their respective awards or assessments. The time limited for appeals having expired, the court of common council has directed the construction of this improvement, and the city is about to enter upon and occupy the property of the plaintiffs needed therefor, notwithstanding the pendency of any appeal, and acting thus under authority of an amendment of the city charter made in 1917.

(13) The charter of the city of Hartford contains the following provisions:

" There shall be a court of common council of said city which shall consist of one branch, to be known as a board of aldermen, in which shall be vested the government, control and management of said city, its property and its affairs, subject to the exceptions otherwise set forth. *** Every vote, resolution, ordinance or by-law except as otherwise expressly provided in the charter of said city, in the passage of which a majority of said court shall have concurred, shall be submitted to the mayor for his approval; and if not by him disapproved, the same shall become valid and effectual as a corporate act of said city; *** it being expressly provided that no vote or resolution of said common council, ordering a public work or improvement which shall require an expenditure of more than twenty-five thousand dollars, shall be obligatory on said city unless approved by a majority vote of a city meeting, duly warned and held for that purpose, which vote shall be by ballot or voting machines."

The questions which are presented by this reservation for the advice of this court are:

(1) Did the resolution ordering this public work require an expenditure by the city of more than $25,000 within the meaning of its charter provision quoted above, so that it must be approved by a majority vote of a city meeting in order to be obligatory on the city?

(2) If so, since this vote or resolution has not been so approved, has the city any right to carry out this public work?

(3) Are the plaintiffs, in the circumstances set out in the agreed statement of facts, entitled as taxpayers to relief by injunction?

John T. Robinson and Francis W. Cole, both of Hartford, for plaintiffs.

Lewis Sperry and Walter S. Schutz, Corp. Counsel, both of Hartford, for defendants.

BURPEE, J.

No objection is made to the assessment against the city on account of general benefits to the people of the city and the community at large, because by itself it would not require an expenditure by the city of more than the amount limited by the provision of the city charter which we are to consider in determining the first question submitted for our advice. That provision is quoted in the agreed statement of facts, and is contained in section 178 of the city charter revised in 1920. Special Laws of 1917, p. 888. But the board of street commissioners of the city has found that three pieces of land belonging to the city will be specially benefited by the proposed public improvement to the amount of $28,346.03, and accordingly in the assessment of benefits has included the city among the owners of specially benefited property lying within the area of assessment. If the payment of these assessments on this property of the city should be reckoned as a part of the expenditure which this public work will require the city to make, it is plain that this expenditure will exceed $25,000, and the resolution ordering this work, since it has not been approved by a majority vote of a city meeting, is not obligatory on the city. The first and decisive question, then, is whether these assessments must be so reckoned within the meaning of this charter provision.

We have said that this provision " was obviously intended to protect the taxpayers of the city against extravagant and unnecessary expenditures by the common council" ( Park Eccl. Soc. v. Hartford, 47 Conn. 89, 93), and that it is regarded " as incidentally affecting the power of the governing body only so far as may be necessary to accomplish that object" (Cook v. Ansonia, 66 Conn. 413, 422, 34 A. 183, 184). And we have held also, in the Park Ecclesiastical Society Case, that there is a difference between a general and a local improvement; that the...