Gibbs v. City of Manchester
Decision Date | 02 May 1905 |
Citation | 73 N.H. 265,61 A. 128 |
Parties | GIBBS v. CITY OF MANCHESTER. |
Court | New Hampshire Supreme Court |
Transferred from Superior Court; Pike, Judge.
Action by Elmer A. Gibbs against the city of Manchester. A verdict for plaintiff was set aside, and a verdict directed for defendant, and the cause transferred from the superior court to the Supreme Court on plaintiff's exceptions. Exceptions overruled.
In 1894 the plaintiff was appointed a police officer for the city of Manchester by the police commissioners under the provisions of chapter 202, Laws 1893. January 28, 1896, he was removed from office by the commissioners, without charges being preferred against him, and without a hearing, by an order contained in and made a part of an order entered in a proceeding against another officer. When he reported for duty on the evening of January 28th he was notified of his removal, and went to his home. On the following day, or about that time, he went to the police station, and delivered up his police badge, diary, book of rules, and other property of the city in his possession. This was done at the request of the chief of police, and without protest. Later he made a new application for appointment upon the police force, and, although he saw the commissioners at different times, he never asked them for a formal hearing upon the question of his discharge, or suggested to them that he was entitled to one. He never reported for duty after the night he was notified of his removal, nor did he claim to be a member of the force, or attempt to do work as a police officer. A few days after his removal he sought a position on the police force of Suncook, but was unsuccessful. For a short time he worked in the needle works in Manchester. From July 1st he worked outside the state for a period of three months. He then went to Franklin, N. H., where he was engaged in different employments until January 1, 1899, when he moved upon a farm in Bristol, where he now resides. From the time of his removal to the bringing of this action he never said anything to any one representing the city that he intended to make any claim against it. Soon after his removal another person was appointed to succeed him upon the police force. Other facts appear in the opinion.
Ira A. Chase, Batchellor & Mitchell, and Branch & Branch, for plaintiff. George A. Wagner and Burnham, Brown, Jones & Warren, for defendant.
The trial in the superior court proceeded upon the ground that the plaintiff's appointment and qualification as a police officer constituted a contract between him and the city of Manchester, to continue "during good behavior and while competent to discharge the duties of the office," or until he was removed by the police commissioners "for good and sufficient cause, and after a due hearing." The form of action was assumpsit to recover damages for a breach of the supposed contract, and the breach relied upon was the dismissal of the plaintiff by the commissioners from the police force without a presentation of charges, notice, and a hearing. The jury returned a verdict for the plaintiff, and the superior court, subject to exception, set it aside, and directed a verdict for the defendants, upon the ground that the city, as a matter of law, was not liable for the unauthorized and wrongful acts of the police commissioners in the alleged removal of the plaintiff from the police force without due hearing. The plaintiff's counsel now concede, and such is undoubtedly the law , that the action for breach of contract cannot be maintained. The reason is that there was no express contract between the plaintiff and the city, and none could be implied except for services actually rendered. They contend, however, that the plaintiff, in the discharge of his duties as policeman, was a public officer; that the action of the commissioners in removing him from office was unlawful and void; that his removal being unlawful, he continued to be an officer de jure, and entitled to all the emoluments of the office; that all the facts showing what salary was attached to the office and essential to its recovery appear in the case; and that he should have judgment for his salary at the rate of $2.25 a day from the date of his discharge (January 28, 1896) to the commencement of this action (April 22, 1901), the same as he would be entitled to had he actually rendered service during this period, and his suit had been originally brought to recover the salary, and not for damages for a breach of the contract.
Under the act of 1893 (Laws 1893, p. 176, c. 202) the commissioners are not authorized to remove police officers at will, but for good and sufficient cause, and after due hearing. The act does not state what causes shall be regarded as good and sufficient to justify a removal, but it is evident that it contemplates some substantial cause, such as corruption or inefficiency in office, infraction of the rules governing the police force, the commission of an infamous crime, or the conviction of a misdemeanor and sentence to imprisonment for a term. Andrews v. King, 77 Me. 224. The removal being for cause, and after due hearing, the proceedings authorized by the statute are necessarily of a judicial character; and, as the mode of procedure is not specified in the act, the substantial principles of the common law, recognized and enforced in proceedings affecting private rights, are to be observed. Andrews v. King, supra; In re Murdock, 7 Pick. 303; Murdock v. Academy, 12 Pick. 244; 1 Dill. Mun. Corp. § 253.
According to the principles of the common law, the accused would be entitled to have the charges intended to be brought against him stated specifically and with substantial certainty, though not necessarily with the technical nicety required in indictments. Andrews v. King, and cases cited supra. He would also be entitled to reasonable notice of the charges thus stated and of the time and place of hearing, and should be allowed to cross-examine the witnesses produced against him, and to offer testimony in his own behalf, within the rules of evidence. After the hearing, and before sentence, the commissioners should decide upon the truth or falsity of the charges as matter of fact, for upon such decision their sentence is based; and to comply with the statute (Laws 1893, p. 177, c. 202, § 4) the charge found to be true, and upon which the order of removal is based, should be stated in the order. Such seems to have been the course generally pursued by the commissioners in proceedings for the removal of officers, but in this instance they summarily dismissed the plaintiff without specific charges being preferred against him, and without notice and an opportunity to be heard upon charges.
In some cases it has been held, where the governing board have acted summarily, the powers conferred upon them being judicial, that their course of conduct could not...
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Nelson v. Town of St. Johnsbury Selectboard
...terminable only for cause. Although far too numerous to cite in their entirety, these early decisions include Gibbs v. City of Manchester, 73 N.H. 265, 61 A. 128, 129 (1905) (holding that, under state law, “the [police] commissioners are not authorized to remove police officers at will, but......
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State v. Corron
...principles of the common law, recognized and enforced in proceedings affecting private rights, are to be observed." Gibbs v. Manchester, 73 N. H. 265, 267, 61 Atl. 128. It has been repeatedly decided in this state that where an officer or a board is called upon to pass upon evidence and dec......
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Labonte v. City of Berlin
...be allowed. It is not an action for breach of contract terminated by the breach. If it were, it would not be maintainable. Gibbs v. Manchester, 73 N. H. 265, 61 A. 128. It is for salary claimed to be payable as though the suspension had not been reinstated. Hence the exception to the allowa......
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Ingersoll v. Williams
...hearing before the selectmen. The plaintiff, however, points to the words "for cause" and our decision in Gibbs v. Manchester, 73 N.H. 265, 61 A. 128 (1905). His argument is that when a statute requires cause for dismissal and does not prescribe the mode of procedure, Gibbs requires a full ......