Attorney General: Honorable Edward C. Krawiecki, Jr., Minority Leader-House of Representatives, 1992-014 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

June 9, 1992

Honorable Edward C. Krawiecki, Jr.
Minority Leader-House of Representatives
State Capitol
Hartford, CT 06106

Dear Representative Krawiecki:

This letter is in response to your letter of March 12, 1992, in which you requested our opinion on the following issue:

Is there any lawful basis upon which a municipality may refuse to meet the requirements of a state law when compliance with the law will result in costs to the municipality which are not reimbursed or otherwise borne by the state?

We understand that you have raised this issue at the request of several state representatives and municipal officials. We conclude that a municipality must comply, even when compliance with the law will result in costs to the municipality which are not reimbursed or otherwise borne by the state.

The Connecticut Supreme Court has held that the state legislature may compel a municipality to incur a debt or liability for a state purpose. State ex. rel. Bulkeley v. Williams, 68 Conn. 131, 35 A. 24 (1896) aff'd sub. nom. Williams v. Eggleston, 170 U.S. 304 (1898). In Bulkeley, the state legislature established a bridge and highway district to maintain a bridge across the Connecticut River. The legislature granted the commissioners of the district, who were appointed by the legislature, the power to apportion the cost of maintaining the bridge, and of constructing new bridges as needed, among the towns benefited, including Glastonbury. Glastonbury argued that it could not "be compelled to contribute, at the dictation of officials not of its own choosing, to the cost of maintaining a highway which is wholly outside of its territorial bounds." Id . at 148. The court disagreed and ordered Glastonbury to contribute its share.

In reaching its conclusion, the court reasoned that "[t]owns have no inherent rights. They have always been the mere creatures of the Colony or the State, with such functions and such only as were conceded or recognized by law." Id. at 149. On the other hand, "[t]he State possesses all the powers of sovereignty, except so far as limited by the Constitution of the United States." Id. at 149. Thus, the court concluded that, with regard to public improvements for highways,

when the State at large or the general public have an interest in the construction or maintenance of such works, there is nothing in our Constitution, or in the principles of natural justice upon which it rests, to prevent the General Assembly from assuming the active direction of affairs by such agents as it may see fit to appoint, and apportioning whatever expenses may be incurred among such municipalities as may be found to be especially benefited, without first stopping to ask their consent.

Id. at 148.

Although the town objected to having to tax its inhabitants to. raise the money required, the court pointed out that the General Assembly, which enacted the statute, was elected in part by the residents of the town. The court noted that "[i]f there were any absolute right in the inhabitants in our towns to regulate their town finances and affairs which was superior to all legislative control, it would be a great 'political power'.... [However] [n]o set of men can lay claim to such privilege under the Constitution of Connecticut." Id. at 152. The court went on to note that the fact that the state had maintained the bridge in the past was unimportant. It was "merely a gratuitous act, with no element of contract, and gave rise to no vested rights, except such as might accrue from obligations on the part of the State subsequently assumed by virtue of its provisions." Id. at 155.

Lastly, the court dismissed the defendant's claims that the legislative act violated the equal protection and due process clauses of the United States Constitution. As stated by the court,

[n]o right, as against the State, to the equal protection of the laws is secured to its municipal corporations by this [14th] amendment, which can limit in any way legislation to charge them with public obligations.... The town can found no claim, under the Constitution of the United States, any more than under that of Connecticut, to such right of local self-government as precludes the General Assembly from exacting this payment, notwithstanding that the demand comes from another municipal corporation, the Bridge District, in choosing whose members, or directing whose affairs, it has had no share.

Id. at 165, citations omitted.

The U.S. Supreme Court affirmed the decision in Bulkeley . Williams v. Eggleston, 170 U.S. 304 (1898). Reiterating the reasons cited by the state court, the Court noted that "it cannot be doubted that the power of the legislature over all local municipal corporations is unlimited, save by the restrictions of the state and federal constitutions." Id. at 310. The Court concluded that "the regulation of municipal corporations is a matter peculiarly within the domain of state control;... the state is not compelled by the federal constitution to grant to all its municipal corporations the same territorial extent, or the same duties and powers." Id. at 310. Moreover, there was no denial of due process because "[i]n casting this burden upon the towns, the legislature did not proceed without a hearing from the towns, for their representatives were in the legislature and took part in the proceedings by which the act was passed." Id. at 311-312.

Since Bulkeley, it has become generally accepted that a state legislature may enact statutes requiring municipalities to incur liabilities for a state purpose. See 2 McQuillan, Municipal Corporations, 4.159 (3rd Ed. 1988). Thus, for example, courts have upheld the legislative power to require towns to pay for public health officers, Keefe v. Union, 76 Conn. 160, 56 A. 571 (1903), to pay for excess water usage, Trenton v. New Jersey , 262 U.S. 182 ' o (1923), to conduct a water fluoridation study, Board of Health of North Adams v. Mayor of North Adams, 268 Mass. 554, 334 N.E. 2d 34 (1975), to indemnify property owners for damage incurred during riots, Goldman v. Forcier, 68 R.I. 291, 27 A.2d 40 (1942) to order reinstatement of police officers with back pay, if their retirement allowances are invalidated, Horrigan v. Mayor of Pittsfield, 298 Mass. 492, 11 N.E.2d 585 (1937) and to indemnify firemen for work related injuries. Berube v. Selectmen of Edgartown, 336 Mass. 634, 147 N.E.2d 180 (1958). As was summed up by the Massachusetts Supreme Court in Berube "[i]t has been settled beyond doubt that it is within the power of the legislature to require municipal corporations to assume new financial liability without their consent and without reimbursement from the Commonwealth." Berube, 147 N.E.2d at 184. We found nothing in our research to indicate that the current Connecticut courts would disagree with this conclusion.

Despite the well accepted conclusion that a state legislature may require a municipality to assume new financial liabilities without reimbursement, the legislature's power is not without limits. As stated by the Supreme Court, "[l]egislative control of municipalities, no less than other state power, lies within the scope of relevant limitations imposed by the United States Constitution." Gomillion v. Lightfoot, 364 U.S. 339, 344-345 (1960). Legislative power is also limited by the provisions of the state constitution. Beach v. Bradstreet, 85 Conn. 344, 82 A. 1030 (1912), New Hampshire Municipal Trust Workers Compensation Fund v. Flynn, 133 N.H. 17, 573 A.2d 439 (1990). Thus a court will not uphold state legislation which is in violation of the state or federal constitution.

The fact that compliance with a state statute will require a municipality to incur costs which had previously been 'incurred by the state, or were the subject of a contract with the state, is not a basis for failing to comply with the statute. In particular, the Supreme Court has held that such a statute does not deprive a municipality of contractual rights in violation of the contract clause of the U.S. Constitution. City of Trenton v. State of New Jersey, 262 U.S. 182 (1923); East Hartford v. Hartford Bridge Co., 10 How. 511 (1850). Hunter v. Pittsburgh, 207 U.S. 161 (1907); Pawhuska v. Pawhushka Oil Co., 250 U.S. 394 (1919).

In City of Trenton v. State of New Jersey, 262 U.S. 182 (1923), the state legislature passed a statute requiring every municipality diverting stream or lake water for a public water supply to pay the state for excess water usage. Years earlier, the plaintiff city had purchased the Trenton Waterworks Company, including the right to unlimited river water which the company had acquired by grant from the state. The city claimed that the statute, requiring it to start paying for water, was a violation of the contract clause and due process clause of the federal constitution because it interfered with the city's contractual rights.

The Court upheld the statute, reasoning that because a municipality is a political subdivision of the state, which derives its powers and privileges solely from the state, it could not possess a contract with the state which could not be changed or regulated by the legislature. The Court quoted from one of its earlier opinions, referring to municipalities, in which it stated that,

[n]either their charters, nor any law conferring governmental powers or vesting in them property to be used for governmental purposes, or authorizing them to hold or manage such property, or exempting them from taxation upon it, constitutes a contract with the state, within the meaning of the federal Constitution. The state, therefore, at its pleasure, withdraw all such powers ...

Id. at 186, quoting Hunter v. Pittsburgh, 207 U.S. 161, 178 (1907). Stating that the state has the power and the duty to conserve water for the benefit of its inhabitants, the Court concluded that "[t]he power of the state, unrestrained by the contract clause or the Fourteenth Amendment, over the rights and property of cities held and used for 'governmental purposes' cannot be questioned." Id. at 188.

The fact that compliance with a state statute will require a town to disregard a provision of its home rule charter is also not an excuse for failing to obey state law. In Cyr v. Coventry, 216 Conn. 436, 582 A.2d 452 (1990), the Town of Coventry had a home rule charter which provided, in part, that expenditures of $100,000 or more had to be approved by the voters at a town meeting. Town residents argued that a state statute, requiring towns to fund water pollution control projects if ordered to do so by the Department of Environmental Protection, violated the home rule provision of the Connecticut Constitution (article tenth, 1) because it required the town to disregard the town charter. The court concluded that pollution control is a matter of statewide concern and that a state statute which pertains to issues of statewide concern supersedes a conflicting provision of a home rule charter.

Finally, a municipality may not refuse to comply with state law based on its failure to appropriate the necessary funds. Lack of money is no excuse. In New Milford v. Litchfield County, 70 Conn. 435, 39 A. 796 (1898), Litchfield County had a statutory duty to pay one third the cost of road construction in the town of New Milford. The County refused to pay, stating that it had insufficient money in its treasury. The court flatly rejected this argument, holding that "[t]he neglect or omission to provide money can never absolve a public corporation from the duty to discharge a statutory liability." Id. at 439.

Similarly, in Borough of Wallingford v. Town of Wallingford , 20 Conn. Sup. 309, 134 A.2d 355 (1957), the court held that the town of Wallingford could not ignore its statutory duty to pay for road construction and maintenance in the borough of Wallingford merely by failing to appropriate money for that purpose. See also Groton and Stonington Traction Co. v. Town of Groton, 115 Conn. 151, 160 A. 1902 (1932); 22 Conn. Op. Atty. Gen. 285, 287 (12/11/41).

In summary, we conclude that a municipality must comply with a valid state law even when compliance with the law will result in costs to the municipality which are not reimbursed or otherwise borne by the state. While a particular statute may violate the state or federal constitution, and thus be subject to challenge, this would depend on the specific language of the statute in question. In the absence of a specific statute, we will confine our answer to generalities and conclude that compliance with state law is required.

Very truly yours,


Jane R. Rosenberg
Assistant Attorney General


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