Avery v. Studley

• Decision Date: 20 December 1901
• Citation: 50 A. 752,74 Conn. 272
• Court: Connecticut Supreme Court
• Parties: AVERY v. STUDLEY, Mayor. SHANAHAN v. SAME. CLARK v. SAME. LANDERS v. SAME.

50 A. 752

74 Conn. 272

AVERY

v. STUDLEY, Mayor.

SHANAHAN

v. SAME.

CLARK

v. SAME.

LANDERS

v. SAME.

Supreme Court of Errors of Connecticut.

Dec. 20, 1901.

Appeal from superior court, New Haven county; Ralph Wheeler, Judge.

Applications in the nature of appeals made by Edward P. Avery and others from the action of John P. Studley, mayor of the city of New Haven, in dismissing applicants from office. From the judgment of the superior court confirming the action of the mayor, Edward P. Avery appeals, it being stipulated by counsel that all the cases might be considered by the supreme court of errors upon the record in the case of this appellant, and the same judgment be entered in them all. Affirmed.

Stipulation: "For the reason that the pleadings in all of the above-named four cases are alike, except for the difference in the respective names of the appellants, and one finding' has been made by the court to apply in all four cases, it is hereby stipulated by counsel that in the appeals to the supreme court of errors the record of but one of said cases shall be printed, namely, in the case of Edward P. Avery v. John P. Studley, Mayor, and that all four of said cases may be considered and decided upon the record in the last-named case."

On May 14, 1901, the plaintiff Edward P. Avery and the plaintiffs in the other cases above named, James P. Landers, John H. Clark, and John P. Shanahan, as members of the board of police commissioners of New Haven, voted to make certain changes in the police force by the transfer of two captains and a sergeant to the veteran reserve, and providing for promotions to the vacancies in the active force thus created. Of the commissioners thus voting, Clark had been appointed as a Republican, the other three as Democrats, and the remaining two, who had been appointed as Republicans, voted against the action. The plaintiff and other three commissioners voted for this action in pursuance of a prior understanding agreed upon between them, by which each one named one or more of the persons who were to be promoted. At this time Cornelius T. Driscoll was mayor of the city, his term of office expiring at noon, June 1, 1901, at which time the defendant, John P. Studley (who had been chosen at the election in April), succeeded him. On May 21, 1901, a meeting of citizens was held at New Haven, which passed resolutions protesting against the action of the board of police commissioners, and calliug upon Mayor Driscoll, or his successor, Mayor Studley, to remote the four commissioners voting for it as inefficient public servants. A few days later a committee of the meeting presented these resolutions to Mayor Driscoll, who stated that, in his opinion, the action of the board was beneficial to the city, and that he saw no reason for the removal of the four commissioners. He took no action in the matter. On June 1, 1901, Mayor Studley summoned each of the four commissioners to appear before him on June 4, 1901, to show cause why he should not be removed from office. The charges accompanying the summons state with much detail substantially as follows: That each commissioner, in concert with the others, had voted as above set forth for improper reasons, and in so acting and voting had not honestly exercised the discretion given them by law, and that they had been, and then were, unfaithful to the duties of their office as police commissioners, and that the requirements of the public service then demanded their removal. The four commissioners appeared before the mayor in response to this summons, and moved that he make a more specific statement of the charges, and that each be allowed the assistance of counsel during the hearing. These motions were denied. The commissioners thereupon, with their counsel, withdrew from the hearing, and took no further part in the same. Mayor Studley proceeded with the investigation, examining witnesses under oath, and after its conclusion found that each of the commissioners was incompetent and unfaithful, and the requirements of the public service demanded his removal, and thereupon removed each of them from office, and sent to each c: mmissioner a notice of such removal. The plaintiff Avery and each of the other three commissioners appealed to the superior court from the order removing him. The complaint sets forth the facts in respect to the hearing before Mayor Studley, and alleges in paragraph 5 that the mayor refused to entertain or pass upon a motion to dismiss the matter for the want of jurisdiction; and in paragraph 9 that the evidence given before the mayor proved and tended to prove that the plaintiff had acted in the matter charged against him in good faith, and wholly within his right, and in the manner and discretion provided by law; and in paragraph 11 that the plaintiff is neither incompetent nor unfaithful, nor do the requirements of public service demand his removal by reason of the acts alleged in said charges; that the plaintiff has done no act which warrants his removal by the said John P. Studley, mayor; nor has a full and reasonable opportunity been given to your applicant to know the nature and character of the charges against him, and to answer and defend against the same; and that the matters charged against him had been heard and duly examined by Mayor Driscoll, and were by him dismissed. The answer denies the allegations of paragraphs 5, 9, and 11, and admits the other allegations of the complaint. The parties went to trial, and without objection offered evidence in respect to the issues thus framed. The judgment of the superior court finds these issues for the defendant, and affirms the mayor's removal of the plaintiff. The errors assigned in the appeal to this court are, in substance, as follows: (1) In overruling the plaintiff's claim of law that Mayor Studley had no jurisdiction over the matters contained in the charges against said commissioners, as the matters therein complained of did not take place during his term of office. (2) In overruling the claim of law that Mayor Driscoll had sole jurisdiction of said charges, and that, as his attention had been called to the same, and he had come to the conclusion that the appellants had not acted in any improper manner, and had not been guilty of any violation of duty, and that the good of public service did not require their removal, and had refused to remove them, and Mayor Studley had no power in the premises. (3) In overruling the claim of law that, as Mayor Studley had not permitted the appellants to have the services of counsel in their defense at the hearing before him, there had been no full hearing, such as the charter requires, and that said hearing was void, and of no effect. (4) In overruling the claim of law that Mayor Studley had erred in denying the plaintiff's motion for a more specific statement. (5) In overruling the claim of law that the refusal on the part of Mayor Studley to permit them to have counsel at said bearing was an error of law, and in consequence of which the court ought to revoke his said order. (6) In overruling the claim of law that the mayor could not remove the plaintiff for any conduct of the plaintiff in the exercise of his official discretion. (7) In finding the facts stated in paragraph 16 of the finding without any evidence. The appeal also assigns error "in approving the order of the mayor upon the facts stated in the finding," and claims certain corrections in the finding.

Sections 11, 12, 46-51, of the charter, specially referred to in argument, are as follows:

"Sec. 11. It shall be the duty of the mayor: (1) To cause the laws and ordinances to be executed and enforced, to inform the city attorney of all violations of law brought to his attention, and to conserve the peace within said city. He shall be responsible for the good order and efficient government of said city. (2) To fill by appointment vacancies in office in all cases in which he is given by law the power to appoint (3) To communicate to the court of common council, during the month of July next succeeding his election, and quarterly thereafter, a general statement of the condition of the city in relation to its government, finances, public improvements, and affairs, with such recommendations as he may deem proper. (4) To call special meetings of the court of common council when he may deem it expedient. (5) To sign all bonds and deeds and all written contracts of the city made either by the court of common council or any officer of the city in accordance with authority conferred upon them by this charter or the ordinances. (6) To call together, at least once in every month, for consultation and advice upon the affairs of the city, the superintendents of the departments of fire service and police, the director of the department of public works, the president of the department of parks, the president of the board of education, the president of the department of charities and correction, the controller, the corporation counsel, the health officer, and such other executive and administrative officers as he may deem best; and at such meetings he may call on any of said officers for such reports as to matters under their management as he may deem proper. (7) To either approve or disapprove, in writing, every vote, resolution, order, or ordinance passed by the court of common council. If he approve it or fail to take action within ten days after the passage thereof, such vote, resolution, order, or ordinance shall become operative and effectual. In case the mayor shall fail to take action upon any vote, resolution, order, or ordinance passed by the court of common council, within ten days after the passage thereof, the clerk shall endorse the fact upon the vote, resolution, order, or ordinance. If he shall disapprove it he shall notify the city clerk of that fact and he shall transmit in writing his reasons for such disapproval to the body in which it originated at or before its next...