Cummings v. Looney

• Decision Date: 16 July 1915
• Citation: 95 A. 19
• Parties: CUMMINGS, State's Atty., v. LOONEY et al.
• Court: Connecticut Supreme Court

95 A. 19

CUMMINGS, State's Atty.,

v. LOONEY et al.

Supreme Court of Errors of Connecticut.

July 16, 1915.

Appeal from Superior Court, Fairfield County; William H. Williams, Judge.

Application by Homer S. Cummings, State's Attorney, for a writ of mandamus against John J. Looney and others, selectmen. From a judgment ordering the issuance of a peremptory writ, respondents Looney and another appeal. Affirmed.

On the first Monday of October, 1914, Mr. Waterbury was elected town clerk of the town of Stamford for the term of two years from the first Monday of January, 1915. On March 20, 1915, Mr. Waterbury died, and the selectmen of Stamford appointed a town clerk to fill the vacancy. On March 30, 1915, more than 20 qualified voters of Stamford requested the respondents, being all of the selectmen, to call a special town meeting for the election of a town clerk by the following written application:

"The undersigned, being more than twenty inhabitants of the town of Stamford, qualified to vote in town meetings, request and petition that you shall convene a special town meeting within ten days after receiving this application to elect a town clerk for the town of Stamford, to succeed the present incumbent appointed by the selectmen to fill the vacancy in said office due to the death of the duly elected town clerk, and to serve for the unexpired term from the date of such election until the next regular town meeting for the election of town officers."

This application was by the signers thereof executed to be delivered, and was delivered, to said selectmen on the 30th day of March, 1915. The selectmen neglected to convene such meeting within 10 days from the filing with them of the application. The relator thereupon made application for a mandamus; whereupon the court issued an alternative writ and rule to show cause, returnable on April 27, 1915, when by leave of court the application and rule to show cause was amended. Thereafter, on April 30, 1915, the respondents filed a motion to quash and a demurrer, the principal ground of which was that the application to the selectmen requested them to call a special town meeting for the election of a town clerk to serve from the date of application until the next regular meeting for the election of town officers, instead of until the first Monday of January, 1917, as by law provided, and that the selectmen were without legal authority to call a special town meeting for the election of a town clerk for less than the full period of the term for which Mr. Waterbury was elected. The court denied the motion and overruled the demurrer. Thereupon the respondent Michaels filed his return, admitting the allegations of the application for a mandamus and submitting himself to the order of the court. The respondents Looney and Hobble filed their return, admitted substantially the allegations of the application for a mandamus, and specially pleaded that Stamford had made a specific appropriation for town election purposes for the present fiscal year and all but a small part of such appropriation had been exhausted and no other sum appropriated to defray the expenses of said special election, the cost of which would be greatly in excess of the unexpended balance of the appropriation. The relator demurred to the special plea of the return as insufficient for the reason that the duty of the selectmen to call the town meeting prayed for was a governmental duty, and the lack or insufficiency of an appropriation to defray the expenses of such meeting was not a legal excuse for failing to call the same. The court sustained the demurrer. The appeal is based upon the claimed errors in denying the motion to quash and in sustaining the demurrer to the return.

Clement A. Fuller, of Stamford, for appellants. John E. Keeler and C. Milton Fessenden, both of Stamford, for appellee.

WHEELER, J. (after stating the facts as above). The selectmen may convene special town meetings: (1) When they shall deem it necessary; (2) when 20 inhabitants qualified to vote in town meeting shall make application therefor. G. S. § 1793. The motion to quash was that the application to the selectmen upon which the mandamus proceeding was based was for the calling of a town meeting for the election of a town clerk until the next regular town election, instead of for the election of a town clerk to hold office for the full unexpired term. The term of office of the town clerk of Stamford was fixed by law at two years, and expired on the first Monday of January, 1917. The death of Mr. Waterbury caused a vacancy which the selectmen filled temporarily The town in town meeting had power to fill this vacancy. G. S. § 1814. The town could not fill the vacancy for a term other than the full unexpired term. 23 Am. & Eng. Ency. (2d Ed.) 418. The statute gives to 20 qualified voters the right to ask for a town meeting for this purpose, and imposes upon the selectmen the duty of calling such meeting. Lyon v. Rice, 41 Conn. 245, 248; Peck v. Booth, 42 Conn. 271, 275. Proper application having been made, the selectmen may, by mandamus, be compelled to call such meeting to fill a vacancy in the office of town clerk for the full unexpired term; they cannot be compelled...