Cummings v. Looney , 89 Conn. 557 ( 1915 )

The selectmen may convene special town meetings: (1) when they shall deem it necessary, and (2) when twenty inhabitants qualified to vote in town meeting shall make application therefor. General Statutes, § 1793.

The motion to quash was that the application to the selectmen upon which the mandamus proceeding was based was for the calling of a town meeting for the election of a town clerk until the next regular town election, instead of for the election of a town clerk to hold office for the full unexpired term.

The term of office of the town clerk of Stamford was fixed by law at two years, and expired on the first Monday of January, 1917. The death of Mr. Waterbury caused a vacancy which the selectmen filled temporarily. The town, in town meeting, had power to fill this vacancy. General Statutes, § 1814. The town could not fill the vacancy for a term other than the full unexpired term. 23 Amer. Eng. Ency. of Law (2d Ed.) 418.

The statute gives to twenty qualified voters the right to ask for a town meeting for this purpose, and imposes upon the selectmen the duty of calling such meeting.Lyon v. Rice, 41 Conn. 245, 248; Peck v. Booth, 42 Conn. 271,275. Proper application having been made, the selectmen may, by mandamus, be compelled to call such meeting to fill a vacancy in the office of town clerk for the full unexpired term; they cannot be compelled to call such meeting to fill the office for other than the full unexpired term, since they cannot be compelled to do that which is not authorized by law.State v. Towers, 71 Conn. 657, 663, 42 A. 1083.

If this application was to call such meeting for the election of a town clerk to hold office until the town meeting to be held on the first Monday of October, 1917, the selectmen were right in their refusal; if it was to call such meeting for the election of a town clerk for the full unexpired term, their refusal was unwarranted, and the motion to quash upon this ground rightly denied. If the period of service had been omitted from the application to the selectmen, no question could be made that the application was not in strict compliance with the statute. Any one reading the application would understand from its terms that the petitioners desired a special town meeting convened for the purpose of electing a town clerk to succeed the incumbent appointed by the selectmen to fill the vacancy in the office due to the death of the duly-elected town clerk. The selectmen could not mistake the object of the election as requested. The addition of a wrongful designation of the term for which the town clerk was to be elected did not vary the object sought. The law fixed the term. Its erroneous designation was a plain case of surplusage. The unnecessary designation does not vary the object of the application, much less vitiate it. The case of Lyon v. Rice, 41 Conn. 245, is essentially analogous to this case, and controlling in its authority.

The demurrer to the return raised the question whether the selectmen were justified in neglecting to call the meeting by reason of an insufficient appropriation, previously made to defray the expenses of such election. The right to a special town meeting for the election of a town clerk was given by statute to twenty qualified voters. General Statutes, §§ 1793 and 1814. Clearly this was a political right. The duty of calling such meeting, legally applied for by twenty qualified voters, was a governmental duty imposed upon these selectmen by statute. The holding of such elections as are provided by law is as essential under our theory of government as is the preservation of order or the administration of justice. Each is imperative, because a vital part of the machinery of government. An insufficiency of funds will not excuse the performance of a governmental duty. The town must provide funds for such purposes. The selectmen will not be permitted to plead the neglect of the town in providing funds as a justification for their own neglect in fulfilling their own governmental duty. Ample power to meet such a case is vested in the selectmen.

The respondents rely upon General Statutes, §§ 60 and 61, which provide for specific appropriations by the State and its political divisions, and forbid and punish the making of expenditures in excess of appropriations. Statutory provisions of this character necessarily control the administration of the internal affairs of a municipality and are confined to them; they cannot control its political action, nor the expenditures made in support of the proper performance of its governmental duty. Williams, State's Attorney, v. NewHaven, 68 Conn. 263, 36 A. 61; Cook v. Ansonia,66 Conn. 413, 422, 423, 34 A. 183. The neglect or omission to provide funds can never absolve a public corporation, or its public officers, from the discharge of a governmental duty imposed by statute. New Milford v. Litchfield County, 70 Conn. 435, 439, 39 A. 796. As a rule, other jurisdictions are in accord with our holding.

Under §§ 1793 and 1814, the selectmen must call the special town meeting. Under §§ 60 and 61, they are forbidden to exceed their appropriations. The appropriation for town elections is nearly exhausted. If this appropriation applies to a special election, the selectmen cannot call this meeting without incurring an expense in excess of the appropriation. The two statutes would thus be in conflict. One or the other must give way, and in such a situation the rule of guidance was laid down by us in State v. Staub, 61 Conn. 553,566, 23 A. 924: "The paramount must control. The command to provide for the essential operations of government must prevail against a rule of procedure in applying the funds raised by taxation for the support of the government."

We have thus far assumed that General Statutes, §§ 60 and 61, applied to the case presented by the return. There is, however, nothing in the record to indicate that the exhausted appropriation was in any part for special election purposes. Indeed, if we were permitted to draw inferences, we should incline to the view that it was for general election purposes. If it does not appear that the town has made a specific appropriation for special elections, an expenditure for such a purpose is not within the restrictions of General Statutes, §§ 60 and 61. "This statute it will be noticed carefully limits its application to cases where specific appropriations have been made for a particular purpose."Whitney v. New Haven, 58 Conn. 450, 462,20 A. 666; State v. Staub, 61 Conn. 553, 563, 23 A. 924.

There is no error.

In this opinion the other judges concurred.