Albert H. Rutter, Charles H. Jones And Jules Simays v. James E. Burke Et. Al

• Decision Date: 09 April 1915
• Citation: 93 A. 842,89 Vt. 14
• Parties: ALBERT H. RUTTER, CHARLES H. JONES and JULES SIMAYS v. JAMES E. BURKE ET. AL
• Court: Vermont Supreme Court

93 A. 842

89 Vt. 14

ALBERT H. RUTTER, CHARLES H. JONES and JULES SIMAYS v. JAMES E. BURKE ET. AL

Supreme Court of Vermont

April 9, 1915

November Term, 1914.

PETITION for a writ of certiorari, brought to the Supreme Court for Chittenden County at its November Term, 1914, and then heard on the pleadings. The opinion states the case.

Petition sustained, issuance of writ ordered, and proceedings ordered to be quashed on being certified to this Court.

V A. Bullard and Sherman R. Moulton for the petitioners.

Max L. Powell for the defendants.

Present: POWERS, C. J., MUNSON, WATSON, HASELTON, and TAYLOR, JJ.

OPINION

MUNSON

This is a petition for a writ of certiorari. The petitioners were, at the time of the action complained of, the water commissioners of the city of Burlington. The petitionees were the mayor and aldermen of the city, constituting the city council. The regularity of the proceedings of the city council in removing the water commissioners is the matter in issue.

The charter makes the mayor the chief executive officer of the city, and requires him to see that the laws and city ordinances are enforced, and that the duties of all subordinate officers are faithfully performed. The water commissioners are appointed by the city council to serve for a term of three years and until their successors are qualified. A superintendent of the city water works is appointed by the water commissioners annually, and may be removed by them at any time for sufficient cause. The charter provides that "the city council shall have power for such causes of incapacity, negligence or bad conduct as to it shall seem sufficient, to suspend or remove from any office any city officer who may be appointed by the city council, and to fill all vacancies in any such office from whatever cause arising."

We give, by way of preliminary, an outline of the transactions which have resulted in this petition. On the eighth day of April, 1914, J. F. Kidder, superintendent of the water works, whose term of office was about to expire, discharged Oscar Heininger, who had been in the service of the water department about thirty years, and was a faithful and efficient employee. The only cause for the discharge, assigned at the time or afterwards asserted, was that Heininger was seeking to be appointed superintendent at the expiration of Kidder's term. Kidder charged Heininger with attempting to displace him, and Heininger denied it; and as far as appeared in the subsequent inquiry Heininger had made no effort in this direction, and Kidder had no good reason to believe that he had. Kidder told Heininger that if he would apologize for what he had done he could come back. Heininger did not recede from his statement, and no apology was tendered. A few days after the discharge Mayor Burke tried to have Kidder take back Heininger, and Kidder refused to do it without the apology. On the fourth day of May the board of aldermen adopted a resolution of inquiry regarding this and any other matter affecting the department, and appointed a committee of three aldermen to investigate and report. The resolution was drawn by the mayor. This committee met May fourteenth, and had several hearings between that date and June sixteenth. The mayor presented charges against the water department generally, and some specific charges against Superintendent Kidder and the commissioners individually, and appeared at all the meetings in support of these charges. He had an accountant examining the books of the department while the hearing was in progress, and from time to time added to the charges until they numbered 26. Superintendent Kidder appeared at these meetings and was fully heard by himself and witnesses in opposition to the charges. The commissioners did not appear. It is alleged in the answer of the contesting petitionees that the water commissioners were requested to appear before the committee if they desired to answer the charges. A majority of the committee made a report sustaining many of the charges, and this was taken up by the board of aldermen July first, when a motion that it be accepted and adopted was lost by a tie vote. On the following day the city council, without charges having been preferred or notice given, voted by a majority of one to remove the water commissioners from office. At a meeting of the city council held on the sixth this vote was rescinded, and twelve written charges against the commissioners, relating to matters covered by the investigation and report of the aldermanic committee, were presented by the mayor. A copy of these charges was mailed to each commissioner on the seventh, with a notice to appear and answer them at 7:30 P. M. of the following day. All the commissioners appeared at the time appointed, when the proceedings were had which are the subject of the present complaint.

At the opening of the hearing counsel for the commissioners objected to having Mayor Burke and Aldermen Crane and Boucher act in the matter, on the ground that they had disqualified themselves from acting in a judicial capacity by the part they had taken in the aldermanic investigation. This objection having been overruled, objection was made to most of the charges on the ground that they were too indefinite to require an answer, and to some on the ground that the matters alleged did not constitute bad conduct under the provisions of the charter, and to others on the ground that they had been previously investigated and passed upon. These objections having been severally overruled, the commissioners objected that a reasonable time had not been given to prepare their defence, and asked that the hearing be adjourned for that purpose. This was refused and the hearing proceeded.

The proceedings had before the aldermanic committee were stenographically reported, and the transcript, which consists of 151 long typewritten pages, is before us as an exhibit of the petitioners. Several pages of items, certified to by the accountant as having been correctly taken from the books of the water department, which are frequently referred to in the testimony, are before us as an exhibit of the petitionees. None of this evidence was sworn to. Other exhibits of the petitionees are the report made by this committee to the board of aldermen, and a report made to the aldermen by a previous committee on some of the matters covered by these charges. Portions of the report made by this committee, and of the evidence taken by it, and of the tables prepared by the accountant, and of the earlier aldermanic report, constituted all the evidence presented to the city council. The commissioners objected to this evidence as hearsay, and for the failure to produce the witnesses and the original papers and books. At the close of the evidence the commissioners moved that the charges be dismissed, on the grounds that no legal or competent evidence had been given in support of them, that such evidence as had been given was evidence taken in a different investigation, and that the committee taking that evidence had no legal authority to investigate the water commissioners.

The commissioners' application for an adjournment to enable them to prepare their defence was refused by the petitionees on the ground that the commissioners were entirely familiar with the charges and the testimony relating to them; and the refusal is now justified by counsel on the same ground. The petitionees have taken testimony showing the management and condition of the water department since the removal of the petitioners, as compared with its management and condition during their incumbency, and claim that this shows an improvement of such advantage to the city that the court may properly refuse the writ in the exercise of its discretion. These claims seem to require a mention of all the charges insisted upon at the hearing before the city council, and some presentation of the matters complained of, as shown by the transcript of evidence and other documents which afforded the basis of the action taken.

It was charged that two of the commissioners were guilty of negligence in not taking action with reference to the conduct of Superintendent Kidder towards Miss Kitty McCaffrey and her sister at the time he discharged them. There was evidence before the aldermanic committee which tended to show abusive treatment of these employees in connection with their discharge. It did not appear that they brought the matter before the commissioners. The occurrence was two years prior to the investigation.

The commissioners were charged with incapacity in installing as an auxiliary to the filtration plant, at an expense of $ 1,800, an engine which was not adequate to the work. The engine was of an approved pattern, but was paid for without testing, and there was much contradictory assertion as to its capacity. The committee had it tested in their presence during their investigation and pronounced it useless, but the sufficiency and accuracy of the test were questioned in further evidence.

The commissioners were charged with bad conduct in allowing the superintendent to dispose of junk without any returns being made to the city. The superintendent admitted disposing of two or three small lots of junk for which he had received no pay, and which did not appear on the books; giving as a reason for this omission that he did not want the commissioners to know that he had been foolish enough to deal with such men. The committee reported that the superintendent did not profit by these transactions.

The commissioners were charged with bad conduct in allowing a hot water furnace to be taken from the department and installed in Commissioner Simays' house, without a charge being made and without payment. This complaint relates to a...