Brown ex rel. Gray v. Quintilian

• Decision Date: 14 April 1936
• Citation: 184 A. 382,121 Conn. 300
• Parties: BROWN, State's Atty., ex rel. GRAY, v. QUINTILIAN.
• Court: Connecticut Supreme Court

184 A. 382

121 Conn. 300

BROWN, State's Atty., ex rel. GRAY, v. QUINTILIAN.

Supreme Court of Errors of Connecticut.

April 14, 1936

Appeal from Superior Court, New London County; Allyn L. Brown Judge.

Action of quo warranto by Arthur M. Brown, State's Attorney, on the relation of Harrison Gray, M. D., against Albert Quintilian, to determine whether the relator or the respondent is the lawfully appointed health officer of the city of Norwich, brought to the superior court in New London county and tried to the court. Judgment rendered for the relator, and the respondent appeals.

No error.

Charles V. James, of Norwich, for appellant.

Lee Roy Robbins and Richard L. Norman, both of Norwich, for appellee.

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

HINMAN, Judge.

The information alleged that the term of office of the relator as health officer of the city of Norwich under an appointment made on October 5, 1931, for the term of four years, ended October 1, 1935. In the forenoon of November 4, 1935, no person having been appointed to succeed him, and a vacancy in the office having existed for more than 30 days, the county health officer, by virtue of section 2405 of the General Statutes, appointed the relator for a 4-year term, he accepted, took the oath, and claims to be the city health officer. However, in the evening of the same day (November 4, 1935) the common council confirmed a nomination by the mayor of the respondent to be health officer for a term of four years, the oath was administered to him, and he took possession and exercises the powers and duties of the office. The respondent in his plea alleged that a period of 30 days had not elapsed prior to November 4, 1935, after the end of the 4-year term for which the relator was appointed in 1931; also, that because the relator held and exercised the powers and duties of the office of health officer up to November 4, 1935, no vacancy existed prior to that date.

The provisions of section 2405 of the General Statutes which are pertinent to the issues presented are that the mayor shall nominate some qualified person to be health officer, which nomination shall be confirmed, or rejected by the common council within 30 days thereafter. " In case of the absence or inability to act of a city *** health officer, or in case a vacancy shall exist in the office of such health officer, the county health officer may designate in writing a suitable person to act as such health officer during such absence or inability or until such vacancy shall be filled, *** and, in case of vacancy in the office of such health officer, if such vacancy shall exist for thirty days, the county health officer *** shall appoint a health officer for such city *** Each such health officer shall hold office for the term of four years from the date of his appointment."

As the appointment provided for is for a specified term of four years without a further provision for holding over until a successor is appointed and qualified, an incumbent after the expiration of his specified term holds de facto only, and his occupancy of the office does not prevent the existence of a vacancy to be filled by the authority empowered to do so. Alcorn, State's Attorney, ex rel. Hendrick v. Keating, 120 Conn. 427, 434, 181 A. 340. The question determinative of the case is when the term of office of the relator under his 1931 appointment expired, thereby creating a vacancy which, after it had existed for 30 days without being filled by nomination by the mayor and confirmation by the common council, the statute (section 2405) directs the county health officer to fill. The finding as to the 1931 appointment is that at a meeting of the common council held on October 5, 1931, the mayor nominated the relator " as health officer for a period of four years from October 1st, 1931," and this nomination was confirmed by vote of the council. Therefore, if the time of this appointment is as stated in the confirmed nomination, it expired on October 1, 1935, a vacancy, to be filled by the proper authorities, had existed for more than 30 days, and the county health officer was commanded by the statute to fill it. If, however, the provision in the statute that each such health officer shall hold office for the term of four years " from the date of his appointment" is to be considered as controlling and as compelling that the time run from the date on which the appointment was made (October 5, 1931), it would have expired October 5, 1935, and the 30-day period had not quite expired on November 4th.

Strict adherence to the letter of the present statute might seem to require the latter conclusion, but among recognized aids to be invoked in statutory construction are the legislative antecedents of the statute, and its practical construction, especially by a governmental agency charged with its administration. Town of Old Saybrook v. Public Utilities Commission, 100 Conn. 322, 328, 124 A. 33; Savings Bank of Rockville v. Wilcox, 117 Conn. 188, 194, 167 A. 709; Newton's Appeal, 84 Conn. 234, 241, 79 A. 742. The search is for the intent of the lawmakers, and when it is clearly ascertainable it prevails over the literal sense and precise letter of the statute. Bridgeman v. Derby, 104 Conn. 1, 8, 132 A. 35, 45 A.L.R. 728; State ex rel. City of Stamford v. Board of Purchase and Supplies, 111 Conn. 147, 161, 149 A. 410; O'Flaherty v. Bridgeport, 64 Conn. 159, 165, 29 A. 466. A court " is not compelled-indeed, it is not permitted-to give absolute and unqualified effect to a single section or clause of a statute, however direct, plain, and unambiguous, considered by itself alone, the language may be, if there are other provisions inconsistent with such a rigid and unrestricted interpretation [of such clause or section], unless the repugnancy *** is irreconcilable, in which case it is the duty of the court to preserve the paramount intention, so far as it is consistent with the rules of law." People ex rel. Mason v. McClave, 99 N.Y. 83, 89, 1 N.E. 235, 238.

The genesis of section 2405 of the General Statutes is section 4 chapter 145, of the Public Acts of 1895, which provided that: " The health officer first appointed under the provisions of this act shall hold office for the period of four years from the first Monday of October succeeding such appointment, and until his successor shall be appointed and sworn, *** and thereafter said health officer shall be appointed for the term of four years." This act took effect August 1, 1895, and was mandatory upon all cities and boroughs which then had no health officer appointed under existing provisions of law. It is to be assumed that municipalities to which it applied made appointments accordingly. On September 2, 1895, a nomination of Dr. Stark as Norwich City health officer for a period of four years was confirmed. Under the act, this appointment...