Somers v. City of Bridgeport

• Citation: 60 Conn. 521,22 A. 1015
• Court: Supreme Court of Connecticut
• Decision Date: 01 June 1891
• Parties: SOMERS v. CITY OF BRIDGEPORT.

22 A. 1015

60 Conn. 521

SOMERS

v. CITY OF BRIDGEPORT.

Supreme Court of Errors of Connecticut.

June 1, 1891.

Appeal from superior court, Bridgeport, New Haven, and Fairfield counties; Robinson, Judge.

Action in equity by——Somers against the city of Bridgeport to restrain the payment of salaries to certain policemen. From a judgment for defendant, plaintiff appeals. Affirmed.

A. B. Beers and J. C. Chamberlin, for appellant.

G. W. Wheeler, for appellee.

CARPENTER, J. Equitable action to restrain the defendant from paying salaries to certain policemen. There are two grounds on which it is claimed an injunction should issue: First, that these policemen were not legally appointed; and, second, that the steps taken for their payment did not conform to the requirements of the city ordinances. Their appointment devolved upon a non-partisan board of police commissioners, consisting of the mayor and two members from each of the two great political parties. The mayor presided, and could vote only when there was a tie. An act of the board required the concurrence of three members. In consequence of including West Stratford in the city limits, the common council, on March 19, 1890, directed the board of police commissioners to appoint four additional patrolmen on the police force. July 1, 1890, a patrolman died, so that there were five to be appointed. July 19th, the board being in session, a member introduced a resolution appointing the men in question. Thereupon two members announced that they would not vote upon it, or have anything to do with it. The mayor put the question on the passage of the resolution. Two members voted for it, two refrained from voting either way, and the mayor declared the resolution passed. The nonvoting members protest, but the proceeding was recorded as declared. The men thus appointed entered upon the duties assigned them, and performed the services for which they now claim pay. A city ordinance provides that a schedule of the salaries, or pay of the officers and members of the police force, signed and approved by the police commissioners, shall be handed to and examined by the auditor before presentation to the common council. The pay-roll of the police force, containing thereon the names of the said five men, was presented to the council of said city for payment, approved by the mayor and two of the commissioners. It had not been otherwise approved by the board, as on two occasions meetings of the board had been called for the purpose of approving it. but on each occasion only two members, with the mayor, were present. The common council directed payment. Soon after this suit was brought, and a ternporary injunction served. Upon these facts the superior court dissolved the injunction, and dismissed the complaint. The plaintiff appealed.

1. Were the patrolmen legally appointed? Action was taken at a regular meeting of the board at which all the members were present. The board had been directed four months before to appoint four additional patrolmen to supply a want caused by the annexation of West Stratford to the city. A short time before, one had died, so that, in the judgment of the common council, five more policemen were needed. An attempt to supply the need was met by two of the commissioners, not by any objection to the time or manner of making the appointment, nor by any objection to the character nor competency of the men, but simply by a refusal to take any action in the matter. We are not told what their motive was, nor are we at liberty to indulge in conjecture. On the face of the record they appear as obstructionists, and as such we must treat them. As it was the duty of the board to appoint, it was their duty to act. By their refusal to vote, they neglected their duty. The need of the city demanded action. Sound policy requires that public interests should not suffer by their inaction. Had they voted against the resolutions there would have been a tie, and the mayor would have given a casting vote. Had he voted in the affirmative, the legality of the appointment could not have been questioned. But they did not vote, although present. Their presence made a quorum. A quorum was present, and all who voted, voted in the affirmative. Why was not. the mayor justified in declaring the resolution passed? The silence of the non-voting members was acquiescence, and acquiescence was concurrence. Their previous declaration and their subsequent protest avail nothing. The test is, not what was said before or after, but what was done at the time of, voting. Counsel for the plaintiff contend that either party might at any time, if they suspected that the other intended a partisan advantage, take the course pursued in this case, and thus produce a dead-lock. We do not so read the charter. If that had been the intention, it would have been more effectually accomplished by denying to the mayor the power to give a casting vote. The object of that provision was to prevent a dead-lock; and we see no evidence of an intention to vest in two members the power to cause one. It was doubtless supposed that ad the...