Bolton v. Tully

• Decision Date: 16 February 1932
• Citation: 158 A. 805,114 Conn. 290
• Court: Connecticut Supreme Court
• Parties: BOLTON v. TULLY, Mayor.

158 A. 805

114 Conn. 290

BOLTON v. TULLY, Mayor.

Supreme Court of Errors of Connecticut.

February 16, 1932

Appeal from Superior Court, New Haven County; Earnest C. Simpson Judge.

Action by Clarence H. Bolton against Thomas A. Tully, Mayor of the City of New Haven, in the nature of an appeal from an order removing the plaintiff from the office of second assistant corporation counsel of the city of New Haven. The case was tried to the court. Judgment for plaintiff, and defendant appeals.

Error and cause reversed and remanded, with instructions.

Philip Pond and Joseph B. Morse, both of New Haven, for appellant.

David M. Reilly, of New Haven, for appellee.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS and AVERY JJ.

BANKS J.

Section 12 of the charter of the city of New Haven provides that whenever the mayor of the city may believe any person appointed to office by him or any of his predecessors to be incompetent or unfaithful to the duties of his office, or that the requirements of the public service demand his removal, he may summon such officer before him to show cause why he should not be removed from office, that with the summons he shall leave with the officer a written statement of the charges against him, and that if, after a full hearing, he shall find that such officer is incompetent or unfaithful, or that the requirements of the public service demand his removal, he may remove such person from office. The same section of the charter gives to the officer so removed a right of appeal to the superior court.

In January, 1930, the defendant appointed the plaintiff second assistant corporation counsel of the city of New Haven for the term of one year from February 1, 1930, and in January, 1931, reappointed him for a further term of one year from February 1, 1931. In performing the duties of such office, the plaintiff attended to the collection of unpaid taxes, liens, and other indebtedness to the city, on or about February 24, 1931, the defendant summoned the plaintiff to appear before him and show cause why he should not be removed from office on the ground that he had been unfaithful to the duties of his office, and that the requirements of the public service demanded his removal. In the written statement accompanying the summons the defendant specifically charged (1) that, in violation of repeated orders issued to him by the corporation counsel directing him to institute foreclosure actions to compel payment of real estate back taxes against all officers of the city who were delinquent before proceeding against any other tax payers, he had failed and neglected to institute legal proceedings during 1930 to enforce the payment of real estate taxes owed by three officers of the city, (2) that in September 1930, he had reported to the mayor and the corporation counsel that there was pending a foreclosure action in the case of every person in the city who owed real estate back taxes in excess of $100, which statement was not true, and (3) that his wife, with his knowledge and approval, shared with a person employed by him in his official capacity in the compensation paid for services rendered to the city, and that such fact was not disclosed by him to the mayor, the Board of Finance or the corporation counsel.

After a hearing upon these charges, at which the plaintiff appeared and was heard and was represented by counsel, the mayor found that the charges were true, and removed the plaintiff from office. Upon appeal the Superior Court revoked the order of removal. The court found that it did not appear that the plaintiff had acted in bad faith, or corruptly or dishonestly, or that he was willfully neglectful of his duty or acted from any ulterior motives, and reached the conclusion that none of the charges, in view of the relevant and subordinate facts, constituted a just or legal cause for removal, and further that acts committed under a prior appointment, which were known by the appointing power, were condoned by re-appointment.

We had occasion to consider the power of the mayor to remove appointive officers under this section of the New Haven charter, and the nature of the appeal from such removal, in the case of A very v. Studley, Mayor, 74 Conn. 272, 50 A. 752, 756. We there pointed out that the method of removal provided in the charter was " rather a mode of exercising the power of removal incident to executive appointment than a quasi judicial power to hear and determine official offenses punishable by a forfeiture of office," and that the conclusion which the mayor must reach after a hearing was similar in character to that he must reach before making an appointment, both being made in the exercise of his official discretion. We there said that it would be impossible for the court upon appeal to entertain all the considerations that must control or influence the mayor in exercising his discretion as to the removal,...