City of New London v. Brainard , 22 Conn. 552 ( 1852 )

Stores, J.

1. It is well established, that corporations have only such rights and powers as are expressly granted to them, or as are necessary to carry into effect the rights and powers so granted.

It was accordingly held, in Stetson v. Kempton, 13 Mass. R., 272, where this principle is very fully vindicated and explained, that towns have no authority, in their corporate capacity, in time of war, or danger of hostile invasion, to vote money, and cause it to be assessed upon the inhabitants, for the purpose of raising money to give additional wages to the militia, or for the purposes of defence, in cases of invasion: and in Hodge v. The City of Buffalo, 2 Denio, 110, that the defendants had no power to contract a debt, for the purpose of defraying the expense of celebrating the anniversary of our national independence. In the former of these cases, the action was against the assessors of the town, who assessed a tax, which was collected, in part, of the plaintiff, in pursuance of a vote of the town, to raise a certain sum of money, for the payment of additional wages to the militia, and other expenditures of defence; and the court refrained from expressing an opinion, on the question, whether any money actually in the treasury of the town, beyond what is needed for its ordinary expenses, and which is unappropriated, may be disposed of, in pursuance of a vote of the inhabitants, for the common defence. ' In the latter case, the action was brought against the city of Buffalo, to recover the amount of the expenses which it had, by a vote, authorized a committee to incur, on its behalf. We are unable to perceive any just ground of discrimination, between a disposition of moneys already in the treasury of the corporation, and a vote to raise money by a tax, or a contract to pay money, for such unauthorized purpose.

We do not find, nor have we been referred to, any express power in the charter of the city of New London, nor is there any general law, authorizing an expenditure of money, for the purpose for which the vote in question was passed ; nor is any power conferred on that city, for the exercise of which such an expenditure is necessary. We think, therefore, that that vote is not binding on the plaintiffs.

2. An injunction in this case, was the appropriate remedy; because, first, the city corporation was in the nature of a trustee of the moneys in its treasury, for the corporators, the inhabitants of the city, for the purposes for which they were incorporated, and here was a meditated misappropriation of the trust fund ; and, secondly, it is extremely doubtful, whether the plaintiffs could have any other remedy. The amount appropriated by this - vote, was in the city treasury, and, if abstracted, must, when wanted for other and legitimate purposes, be supplied, by a tax on the inhabitants. It is suggested, that the plaintiffs should bring an action against the city, for a misappropriation of its funds, or that, when such a tax is laid, they should, by a proper action, resist its collection. We are by no means prepared to say, that an action could be maintained, on either of these grounds, and are strongly inclined to think it could not. But, however this may be, we are clearly of opinion, that the plaintiffs are not bound to wait until the money is misspent, nor until such tax shall be levied, and attempted to be collected, but that they may call on a court of equity to interpose, by way of preventing the injury. On these grounds, the case comes within the ordinary jurisdiction of equity, in regard to injunctions.

This bill was brought both against the city and its treasurer. The former only, appeared to defend, and alone files this motion in error. ' It is questionable, whether it is competent for the city to object, that both should not have been joined ; but we think that the injunction was properly granted against the treasurer, as well as the city.

The judgment of the superior court is therefore affirmed.

In this opinion the other judges concurred, except Waite, J., who heard the cause in the court below, and was disqualified.

Judgment .affirmed.