Comley ex rel. Donovan v. Lawlor

• Decision Date: 06 December 1935
• Citation: 120 Conn. 610,182 A. 218
• Parties: COMLEY, State's Atty., ex rel. DONOVAN v. LAWLOR et al. COMLEY, State's Atty., ex rel. HENESSY v. LAWLOR. COMLEY, State's Atty., ex rel. KANE v. SAME. COMLEY, State's Atty., ex rel. BIEBEL v. SAME.
• Court: Connecticut Supreme Court

182 A. 218

120 Conn. 610

COMLEY, State's Atty., ex rel. DONOVAN v. LAWLOR et al.

COMLEY, State's Atty., ex rel. HENESSY v. LAWLOR.

COMLEY, State's Atty., ex rel. KANE v. SAME.

COMLEY, State's Atty., ex rel. BIEBEL v. SAME.

Supreme Court of Errors of Connecticut.

December 6, 1935

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

Applications by William H. Comley, State's Attorney, on the relation of Lawrence P. Donovan, on the relation of John Henessy, on the relation of John T. Kane, and on the relation of George H. Biebel, for writs of mandamus against James D. Lawlor and others to compel the payment of firemen's pensions.Judgment for defendants, and relators appeal.

Error and judgment set aside, and cases remanded, with direction.

Philip Reich, of Bridgeport, for appellants.

Ogden T. Marsh, of Bridgeport, for appellees.

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

MALTBIE, Chief Justice.

These are actions of mandamus brought by the plaintiffs to enforce their claimed rights to receive pensions from the firemen's relief fund established under the charter of the city of Bridgeport.The charter provides that the board of fire commissioners of the city shall constitute the board of trustees of the fund, the city treasurer shall be treasurer of it, and the clerk of the board of fire commissioners shall be secretary of the board; and it further provides that the board of trustees shall from time to time appropriate and cause to be paid such sums as may be needed for the purpose of paying pensions to those entitled to receive them, Special Laws of 1927, p. 485.Firemen become eligible to receive payments from the fund upon retirement by the board of fire commissioners.Each of the plaintiffs had been retired during the period 1929 to 1931 by vote of that board.The plaintiffs alleged in the alternative writs that they were not receiving the payments from the fund to which they had become entitled upon retirement.In the returns to the writs the defendants alleged that the votes retiring the plaintiffs were the result of mistake in fact and law and of fraud on the part of the plaintiffs, and that they were not in fact entitled to retirement; also that there were not funds at the disposal of the board of trustees out of which the pensions could be paid.The cases came to issue and were tried.The trial court reached the conclusion that the plaintiffs were entitled to receive the amounts claimed, but directed judgment for the defendants because of what it held to be a fatal defect as to the partiesdefendant.

The alternative writs were addressed to " James D. LawlorHenry T. Lynge, James Colgan and George W. Gydeson, all of the city of Bridgeport, County of Fairfield and State of Connecticut, members of the Board of Trustees" of the fund, and to Oliver G. Righter and John J. Hines, respectively treasurer of the fund and secretary of the board.The writs alleged that the defendants were such members, treasurer and secretary, and required the defendants, by name, without further designation, to pay the plaintiffs the pensions to which they were entitled, or show cause to the contrary.After the bringing of the actions, Lynge was succeeded upon the board by David MacKenzie and the latter ties was substituted for the former as a partydefendant by stipulation of the parties.At the trial it appeared that Lawlor, Colgan, and Gydeson were no longer members of the board of fire commissioners of the city, and, as such, members of the board of trustees of the fund, and that Righter was no longer treasurer of the city, and, as such, treasurer of the fund.The conclusion of the trial court which was the basis of the judgments for the defendants was that as the alternative writs ran against the members of the board of trustees of the fund individually and not against the board, the court was without power to issue peremptory writs which would be effective as regards those who were members of the board at the time of judgment.

The decision of the trial court proceeded upon the ground that the duty to take the steps necessary to bring about the payments to the plaintiffs rested upon the board of trustees, and that the plaintiffs' rights could be enforced through a proper mandamus proceeding directed against that board; this is not questioned by the defendants, and we proceed upon that assumption.Any action by the board of trustees would be taken by it in its official capacity and pertain to the performance of its functions as a board; and its individual members would be without power except as they acted in and through it.The defendants in their returns set up defenses which were in no way personal to them, but concerned only official action by the board.Throughout the proceedings, despite changes in the membership of the board, the various city attorneys appeared to oppose the relief claimed.No pleadings were filed raising any issue as to the fact that the persons named in the alternative writs had ceased to be members of the board.SeeThompson v. United States,103 U.S. 480, 483, 26 L.Ed. 521.There can be no question that the proceedings throughout were treated as directed to secure action by the board, through its individual members.To this situation the statement made in Commissioners of Leavenworth County v. Sellew,99 U.S. 624, 627, 25 L.Ed. 333, is applicable: " The board is in effect the officer, and the members of the board are but the agents who perform its duties.While the board is proceeded against in its corporate capacity, the individual members are punished in their natural capacities for failure to do what the law requires of them as the representatives of the corporation."The writs in these actions could compel action by the members of the board only in their official capacities and the proceedings, though addressed to them as members of the board, were to all intents and purposes directed against the board as such.SeeState ex rel. Bulkeley v. Williams,68 Conn. 131, 137, 35 A. 24, 421, 28 L.R.A. 465.

In Norwalk, etc., Electric Light Co. v. Common Council,71 Conn. 381, 389, 42 A. 82, 85, we said: " The prerogative writ of mandamus may run directly to the board.The individual members are dealt with as in the case of a corporation for the purposes of punishment, if the command is disobeyed.It is a matter of practice, and not of substance when an act is commanded which can only be performed by a board as a public body, whether the alternative writ should be directed to the board directly or indirectly by naming all the members of the board, or to the board and the individuals composing it.When there is no controlling statute or rule of practice, the form of direction has been held...