Connelly v. City of Bridgeport , 104 Conn. 238 ( 1926 )

These actions, brought separately, rest upon the same basis and require the consideration of essentially the same questions. At the request of the parties they were reserved, and by agreement of counsel argued together, and will be so considered in this opinion.

The charter of the city of Bridgeport as revised and amended to September 1st, 1917, provides that there shall be in the city of Bridgeport a tax commissioner, who shall have all the powers and duties exercised by boards of assessors, and shall have authority to appoint a deputy commissioner and a chief clerk, etc. It also provides that there shall be a board of apportionment and taxation.

In 1917 (17 Special Laws, p. 840, § 3), the General Assembly enacted the following provision: "The common council of the city of Bridgeport, by ordinance, shall have the power and authority to determine and change the salaries or other compensation of all officials elective or appointive under the charter of the city of Bridgeport." This Act, unless repealed by the Act of 1923, subsequently referred to, was in force at the time of the passage of the Act of 1925 in question. There was also in force at this time, unless repealed by the Act of 1923, § 53 of the charter, which provided that the common council shall have the power to make orders and ordinances "relative to the salaries and compensation of all officers of said city, and the duties of such officers, not expressly defined by the provisions of this Act."

Prior to this enactment, the salaries of the mayor, city attorney, director of public works, city clerk, tax collector, etc., were fixed by charter provision and could not be reduced or increased by action of the common council. In the same Special Act of 1917 (17 Special Laws, p. 839), the General Assembly abolished the board of assessors and substituted in their stead an officer designated "tax commissioner," whose salary, together with those of his deputy commissioners, clerks, etc., were fixed in the Act. Prior to this Act the board of assessors, and subsequent to the Act, the tax commissioner, were appointed by the mayor. By the charter revision of 1907, a board of apportionment and taxation was constituted, whose duty it was to fix the municipal budget and the tax rate to provide the necessary funds for municipal purposes. In 1923, the General Assembly enacted the following (19 Special Laws, p. 36): "An Act Amending the Charter of the City of Bridgeport. . . . The common council of the city of Bridgeport shall not abolish any existing office or reduce the rank or salary of any officer in said city, provided in the event any vacancy occurs in any office the common council may abolish such office or reduce the salary provided for the officer occupying any such office, and also provided any officer may be removed for cause subject to the provisions of the charter."

In 1925 (19 Special Laws, p. 807) the General Assembly, by an Act approved June 1st, 1925, entitled "An Act Amending the Charter of the City of Bridgeport, Concerning the Assessment and Collection of Taxes," enacted the provisions which have given rise to the questions under consideration in these actions. A copy of this Act appears in the footnote.^* By this Act (§ 1) it was provided that there should continue to be a board of apportionment and taxation; that on or before July 1st, 1925, the Governor should appoint seven members of this board, two to serve until January 1st, 1928, two until January 1st, 1930, and three until January 1st, 1932. It was also provided: "In December prior to the expiration of the term of any member so appointed, the mayor shall appoint his successor to serve for a period of six years from the first day of January following the date of appointment. . . . Said board shall perform all the duties imposed by law upon the board of apportionment and taxation as constituted at the time of the passage of this act and such other duties as are imposed by the provisions hereof. . . . [ § 2] On or before July 1, 1925, said board of apportionment and taxation shall appoint a tax attorney, an assessor and a collector of taxes, each to serve for a term of six years from the date of his appointment and to receive a salary of seventy-five hundred dollars per annum, payable in equal semi-monthly instalments; but any such appointee may be removed from office for cause by the Superior Court on application to said court of at least two members of the board of apportionment and taxation. . . . [ § 12] The tax attorney, the assessor, the collector of taxes, the clerk of the board of apportionment and taxation, the board of relief and the board of contract and supply may appoint such assistants, legal, clerical and stenographic, as may be necessary for the conduct of the work imposed respectively on them by the provisions hereof, but the appointment of any person whose annual compensation shall exceed twelve hundred dollars shall be subject to the approval of the board of apportionment and taxation."

The foregoing citations are sufficient to show that by the Act of 1925, the General Assembly sought to effect a radical and complete change in the then-existing method of levying, assessing, and collecting taxes, and making appropriations in the city of Bridgeport; of selecting the necessary public officials for this work; and in providing for their compensation. This conclusion is emphasized by the closing clause of the Act:

"All provisions of the charter of the city of Bridgeport and amendments thereto or ordinances of the city of Bridgeport or amendments thereto which are inconsistent with the provisions of this Act are repealed and no provision of the General Statutes inconsistent with any provisions of this Act shall apply to the city of Bridgeport."

With the wisdom or unwisdom of this legislation, this court has, of course, nothing to do. It is our function to interpret the legislative will, not to question its exercise. We are to construe the Act with definite regard to the existing legislation on the same subject. Chamberlain v. Bridgeport, 88 Conn. 480,490, 91 A. 380. If possible also we are to so interpret its terms that when that will is ascertained, it shall become legally operative and effective. It follows that arguments and considerations addressed to these matters of legal interpretation and construction, are the only ones to which we can listen. State ex rel.Lewis v. Turney, 97 Conn. 496, 504, 117 A. 499.

Our first concern is the ascertainment of the legislative intent in the Act of 1925 — not, what did it mean to say, but what is the meaning of what it did say. Chamberlain v. Bridgeport, 88 Conn. 480, 490,91 A. 380; State v. Faatz, 83 Conn. 300, 305, 76 A. 295;Walsh v. Bridgeport, 88 Conn. 528, 534, 91 A. 969;Bissell v. Beckwith, 32 Conn. 509, 516.

An examination of its provisions at once discloses a purpose to remove from the control of the local authorities and the people of Bridgeport, the entire machinery then existing for the levy and collection of taxes and appropriations thereunder. Practically every feature of the charter and ordinances touching this branch of city business, is rewritten and radically changed to the minutest detail.

The membership of the board of taxation and apportionment is changed from twelve to seven, and the selection of the new members is to be by the Governor of the State and not by local authority as theretofore, and no appointment to the board can be made by the mayor prior to January 1st, 1928. This board appoints a tax attorney, an assessor, and a tax collector, each with a fixed salary of $7,500 per year, and these are to assume the duties of the former officials in connection with this feature of the city's affairs. The method of their selection and that of their subordinates, their respective duties and their method of performing them, and many other requirements, are prescribed with a particularity that leaves no doubt of the intent to make a complete change and put the new method in the place of the old in all its details. The obvious aim is to bring the exclusive management of taxation in Bridgeport under the provisions of this Act, and divest the existing local authorities of control.

The Act became operative July 1st, 1925, and on July 6th, 1925, the common council of the city of Bridgeport passed an ordinance, basing it upon claimed authority under § 35 of the charter, which ordinance reads as follows:

"Section 1. The salary of the tax assessor shall be at the rate of thirty-five hundred dollars per annum; the salary of the assistant or deputy tax assessor shall be at the rate of three thousand dollars per annum; the salary of the chief clerk shall be at the rate of twenty-five hundred dollars per annum; the salary of the clerk of block maps shall be at the rate of two thousand dollars per annum; the salary of the engineer shall be at the rate of two thousand dollars per annum; the salary of the transfer clerk shall be at the rate of sixteen hundred dollars per annum.

"Sec. 2. All other assistants, deputies, clerks or employees in the office of the tax assessor shall be at the rate of twelve hundred dollars per annum.

"Sec. 3. This ordinance shall take effect upon its passage and approval and all ordinances or parts of ordinances inconsistent herewith are hereby repealed."

In accordance with the provisions of § 2 of the Act of 1925, previously recited, the board of apportionment and taxation appointed the plaintiff Connelly to be the assessor, to hold office for the term of six years from July 1st, 1925, and, on the last-named date, the assessor, Connelly, as authorized by the Act, appointed the plaintiff Gill as assistant to the assessor from and after that date, at a salary of $3,500 per annum, which latter appointment and the salary were approved and ratified by said board. Both the above-named appointees entered upon and have performed the duties of their offices.

The plaintiffs claim that on August 16th, 1925, there was due to them by the provisions of the Act under which they were appointed, $937.50 and $438.75 respectively. The defendant, claiming to act by authority of the ordinance of July 6th, 1925, paid them $397.16 and $200 respectively, and refused to pay the balance. These actions are brought to recover those sums.

There is no dispute between the parties as to the validity of the appointment of these officials, nor as to services rendered by them thereafter, and it is agreed that the acceptance by them of a part only of the sum claimed shall not be held to operate in any way as an estoppel to prevent the recovery of the balance if they are lawfully entitled to it under the Act of 1925.

There are, as will be seen, two classes of appointees under this Act; that of the plaintiff Connelly is of the first class, where the salaries are definitely fixed by the Act, and that of the plaintiff Gill is of the second class, where the salaries are fixed by a superior officer — in this instance by the assessor, with the approval of the board of apportionment and taxation; but as to both, a construction of the legislative Act of 1925 is necessary.

As between the charter and the ordinances of the defendant city and the later Act of the legislature, the paramount authority of the latter is unquestioned. The right of self-government by charter and ordinances is itself a legislative grant and is held by the city at the will of the legislature and subject to such change or modification as the latter may at any time see fit to make. Towns and cities under our form of government in Connecticut, have no inherent right of self-government, and no powers save such as are granted to them by the legislature, expressly or by necessary implication, subject, of course, to constitutional limitations. No constitutional question arises in the present inquiry. Webster v. Harwinton,32 Conn. 131, 137, 139; Booth v. Woodbury, 32 Conn. 118,126; State ex rel. Bulkeley v. Williams, 68 Conn. 131,140, 149, 35 A. 24, 421; Johnston v. Allis,71 Conn. 207, 217, 41 A. 816; Chamberlain v. Bridgeport, 88 Conn. 480, 490, 91 A. 380; Water Commissioners v. Manchester, 89 Conn. 671, 677, 96 A. 182;Donnelly v. New Haven, 95 Conn. 647, 654,111 A. 897; Waterbury v. Macken, 100 Conn. 407, 411,124 A. 5.

In State ex rel. Southey v. Lashar, 71 Conn. 540, 546,42 A. 636, we said: "The city [Bridgeport] can do no act nor elect any officer unless it is authorized to do so by its charter. If the charter points out a particular way in which any act is to be done or in which an officer is to be elected, then, unless these forms are pursued in the doing of the act or in the electing of the officer, the act or the election is not lawful. In all such cases the form of the appointment is essential to its validity. Forma dat esse rei."

Some of the provisions of the charter and ordinances which we have cited, are clearly inconsistent with the provisions of the Act of 1925. The latter must therefore control to that extent, and the former are repealed by the express terms of the last section of the Act, to which we have referred. Under the established rules of statutory construction, this result would follow inevitably, were there no such repealing clause, for the Act, as we have seen, aims to cover the whole field and to be exclusive, and it is the last expression of the legislative will. So far as pre-existing provisions, by their repugnancy or inconsistency, stand in the way of the full and effective operation of the final expressed will of the legislature, they stand, in law, aspro tanto repealed. Not only is this true of those provisions which are on their face inconsistent with the Act, but of any others which upon examination and analysis are found to hamper or interfere with its workability. Hartford v. Hartford Theological Seminary,66 Conn. 475, 484, 34 A. 483; State ex rel.Reiley v. Chatfield, 71 Conn. 104, 112, 40 A. 922; Walsh v. Bridgeport, 88 Conn. 528, 535, 91 A. 969;Tracy v. Tuffly, 134 U.S. 206, 223, 10 Sup. Ct. 527;Cook County Nat. Bank v. United States, 107 U.S. 445,451, 2 Sup. Ct. 561; United States v. Tynen, 78 U.S. (11 Wall.) 88, 95; Bartlet v. King, 12 Mass. 536,545; Farr v. Brackett, 30 Vt. 344, 346; Vroom v. Boardof Education, 79 N.J.L. 46, 47, 74 A. 262; Clark v.Edgar, 84 N.J.L. 333, 336, 86 A. 389; People ex rel.Cant v. Crossley, 261 Ill. 78, 89, 103 N.E. 537; Stiers v. Mundy, 174 Ind. 651, 656, 92 N.E. 374; Hall v.Stewart, 135 Va. 384, 391, 116 S.E. 469; State v.Lamar, 178 Ala. 77, 59 So. 737, 739; Harris v. Cooley,171 Cal. 144, 147, 152 P. 300; Glassell DevelopmentCo. v. Citizens Nat. Bank, 191 Cal. 375, 216 P. 1012,1016; Madison v. Southern Wisconsin Ry. Co.,156 Wis. 352, 359, 146 N.W. 492.

These principles are basic, universally recognized, and clearly enunciated in a long line of decisions in many jurisdictions, and they doubtless have the full concurrence of counsel for the defendant. To sustain his position that the common council retains control of salaries fixed by the Act of 1925, it becomes necessary to hold that this is not one of those provisions which is repugnant or inconsistent, and so is not within the purview of the rule. He says that the ordinance passed by the common council July 6th, 1925, was authorized by that portion of § 35 of the charter which was added by the amendment of 1917, viz.: "The common council of the city of Bridgeport, by ordinance, shall have the power and authority to determine and change the salaries or other compensation of all officials elective or appointive under the charter of the city of Bridgeport." This amendment, as we have seen, was followed by that of 1923, which reads: "The common council of the city of Bridgeport shall not abolish any existing office or reduce the rank or salary of any officer in said city, provided in the event any vacancy occurs in any office the common council may abolish such office or reduce the salary provided for the officer occupying any such office, and also provided any officer may be removed for cause subject to the provisions of the charter."

Counsel contends that this latter amendment should be construed to refer only to such offices as existed at the time the amendment was passed; that since the authority given to cities in this State by General Statutes, § 388, to amend their own charters and thus change the compensation of their officials, was repealed by the further Act of the legislature in 1923 (Public Acts, Chap. 284, §§ 1-3), the city had no right after that date to abolish any office or change the salaries of officials fixed by charter, and the amendment of 1923 which we are considering should be construed to refer only to those offices which are within the control of the common council, viz.: those created by ordinance.

We are unable to see the force of this argument. The amendment is in clear and unequivocal language. The common council is forbidden to abolish "any existing office" or to reduce the salary "of any officer in said city." Its meaning cannot be rendered doubtful, or its application narrowed, by any legitimate method of construction. It emanates from the same authority as the amendment of 1917. Not only does the latter have no superior force or effect, but both became a portion of the organic law governing the city of Bridgeport, and so far as they are in conflict, the last must of course govern and override the first. It follows that, so far at least as the matter of changing or reducing salaries is concerned, the authority to do so which was granted to the common council in 1917 was taken away in 1923.

This conclusion leaves nothing for the ordinance of July 6th, 1925, to rest upon, and it is without sanction, express or implied, in any grant by the legislature, by special or public Act.

But even if the amendment of 1917 could be held operative to permit the reduction of salaries of its officials by the common council, generally, it would not follow that it could apply to the legislative Act of 1925. The reason for this is that not only does the latter repeal in terms all existing inconsistent or repugnant provisions, and the rules of statutory construction do the same, but it would concede the right of the common council to render nugatory the legislative Act. It is undeniable that if the common council were to have authority by ordinance to reduce salaries specifically provided by the legislative Act of 1925, it would be in a position to nullify the entire purpose of the latter. This is now a charter provision of the city of Bridgeport, and the law requires that it be so construed, if possible, as reasonably to promote its ultimate purpose.Donnelly v. New Haven, 95 Conn. 647, 667,111 A. 897.

"The power to tax is the power to destroy," and this is equally true of the power to reduce salaries. If the common council had that power, it would be simple to make such reductions in the salaries of the officials who are charged with the carrying out of the purposes of the legislative Act that the entire legislation would fail of its object. It does not change the legal effect of this to say, as do counsel, that it is not to be assumed that the common council of the city of Bridgeport would in fact thus jeopardize the sound operation of its taxing system. While this is doubtless true, the argument has no legal force. Moreover, if the common council has that power to nullify the purpose of the legislation in the Act of 1925, it is because the legislature granted it, either expressly or impliedly, in the Act itself, or allowed it to remain with the common council under a previous grant. We can find nothing of that character in either place, and it results that the ordinance of July 6th, 1925, must be held invalid and of no effect, so far at least as it relates to the salaries of the assessor and his assistant, the plaintiffs in these actions.

To the five questions propounded to us in each case, we answer the first and second, "Yes"; the third and fourth, "No"; and the fifth, for the plaintiff Connelly $937.50, and for the plaintiff Gill $437.50, being one and one-half months at $7,500 and $3,500 per annum, respectively.

In this opinion the other judges concurred.