Labonte v. City of Berlin

• Decision Date: 03 March 1931
• Citation: 154 A. 89
• Parties: LABONTE v. CITY OF BERLIN. SAME v. CHURCHILL et al.
• Court: New Hampshire Supreme Court

154 A. 89

LABONTE

v. CITY OF BERLIN.

SAME

v. CHURCHILL et al.

Supreme Court of New Hampshire. Coos.

March 3, 1931.

Transferred from Superior Court, Coos County; Burque, Judge.

Assumpsit by Amedee Labonte against the City of Berlin to recover salary as a police officer, together with a petition for certiorari, seeking an order vacating the plaintiff's suspension from service by the police commission. Case transferred after dismissal of petition for certiorari and finding for plaintiff in respect to salary during specified period, to which finding and ruling the defendant excepted.

Exceptions sustained except as limited in opinion.

Assumpsit, to recover salary as a police officer, and petition for certiorari, seeking an order vacating the plaintiff's suspension from service by the Berlin police commission. Trial of the action by court, together with hearing on the petition.

On May 26, 1928, the plaintiff was arrested on a complaint under the bastardy statute made before birth of the prospective child. The commission thereupon suspended him until further notice under an agreement that the suspension should continue pending final disposal of the complaint. The mother of the child miscarried, and on August 27 the commission, being notified that the bastardy proceeding was at an end and understanding that nothing further would arise in connection with the matter, reinstated the plaintiff. On September 24, on information that an action for seduction had been or was to be brought by the complainant's mother, the commission voted to reconsider the reinstatement and continue the suspension under the original order. At that time the plaintiff sought and was denied a hearing.

The action for seduction was entered and remained in court until June, 1929, when it was terminated by a nonsuit. Meanwhile the plaintiff had brought this action and the petition for certiorari. On a preliminary hearing in June, the court suggested that the commission "could not keep plaintiff indefinitely suspended without preferring charges against him and giving him a hearing." On June 24 the city marshal presented a charge alleging unlawful relations with the complainant in the bastardy proceeding. On July 26 the plaintiff was notified of a hearing on the charge to be held upon August 8. Upon the hearing, the charge was found sustained and the plaintiff removed.

When the action was finally tried and the petition heard, the petition was dismissed for the reason that the commission was found warranted in sustaining the charge preferred by the marshal and in ordering removal. In the action the plaintiff was found entitled to his salary from August 27, 1928, to August 8, 1929, on the ground that the commission "had no right to inflict upon the plaintiff a suspension which to all intents and purposes was a removal from office, without preferring charges against him and giving him a hearing." To this finding and ruling the defendant in the action excepted.

Ovide J. Coulombe and Ira W. Thayer, both of Berlin, for plaintiff.

Matthew J. Ryan and Crawford D. Hening, both of Berlin, for defendants.

ALLEN, J.

I. The plaintiff is entitled to recover for his salary from August 27, 1928, to September 24, 1928. No order of suspension was then in force, and the order of renewal had no retroactive effect. As he was a regular officer, the fact that no work was assigned to him during the period is immaterial, thus differing from the case of a special officer. The exception to the allowance of salary is accordingly overruled as to the part of it thus accrued.

II. The action was brought prior to June, 1929. Recovery in it for any salary accrued after the date on which it was brought cannot 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 allowance of salary is sustained as to such part of it. Hilliard v. Bothell, 64 N. H. 313, 314, 8 A. 826; Ackerman v. Middleby, 75 N. H. 576, 78 A. 615, and cases cited. In the action the court had no jurisdiction of the subject-matter of such salary and could not acquire it by agreement or estoppel of the parties. Mansfield v. Holton, 74 N. H. 417, 421, 68 A. 541.

III. The order of September 24 renewing the suspension determined the plaintiff's status as a suspended officer. If the suspension was legal, it meant loss of salary during its period. Shannon v. Portsmouth, 54 N. H. 183, 184. The suspension was without hearing. Whether a suspension without hearing may be attacked collaterally or whether it must be set aside by certiorari before action for salary can be brought is a question presented. The action was brought while the order remained unvacated.

In Shannon v. Portsmouth, supra, it was held that the legality of the suspension there considered could not be determined in the officer's action for pay during the suspension. The suspension followed a hearing, and was clearly a judicial act in the nature of a judgment. It was a case of a public duty to "pass upon evidence and decide." Sweeney v. Young, 82 N. H. 159, 161, 131 A. 155, 157, 42 A. L. R. 757, and cases cited. The decision is in line with the cases in which the general principle is laid down that the judgments of administrative tribunals are not subject to collateral attack. State v. Corron, 73 N. H. 434, 435, 62 A. 1044, 6 Ann. Cas. 486, and cases cited; State v. Stevens, 78 N. H. 268 270, 99 A. 723. L. R. A. 1917 C, 528.

But the suspension here was without hearing. It was not for that reason illegal as will appear later. But, in view of its ex parte character, it is not to be regarded as a judicial act. While the commission considered the information they had and made a decision, the plaintiff had no right to a trial and no right to appeal from the decision and thereby obtain a full hearing as a matter de novo. The order was therefore not a judgment. But it was a valid exercise of administrative power, and the rights of the plaintiff were affected in consequence of it. State v. Corron, supra, 73 N. H. 462, 62 A. 1044, 6 Ann. Cas. 486. He was bound by it as though he had the right of hearing.

Although it was only executive action, yet, as an administrative determination of rights, the result was to take away the plaintiff's right to active service and to give him an altered status. If the action was lawful, he lost his right to salary. If, aside from the question of power and jurisdiction, it was unlawful, yet the suspension barred the right to salary until it was vacated. Until then the status of suspension continued and measured his rights.

The action for salary is not against the commission. If the legality of the order may be passed upon in the action, the result is the anomalous situation of an order unattacked in respect to its enforcement by the commission, but held invalid collaterally in an action to which the commission is not a party. As long as no proceeding is brought to vacate the suspension, the plaintiff accepts its validity to bar him from service, and, if it is thus valid, he has no right to compensation. He may not call it effective in barring him from service and at the same time treat it as ineffective in barring him from pay. He may not separate the suspension into a valid part relieving him from the burdens of his office and an invalid part giving him its benefit. "A reasonable compliance with the ordinance therefore required the plaintiff to go further, and show not only that he was ready and willing to perform the duties of his office during the period of removal, but that he had seasonably taken steps to bring about his reinstatement and had been reinstated." Gibbs v. Manchester, 73 N. H. 265, 269, 61 A. 128, 130. While the plaintiff here has sought to have the suspension removed, it remains that his action for salary was brought before its removal. Every reason that supports the rule against collateral attack of a judgment is to be found in the case of an order like that under consideration, conceding that it may have only administrative character. The reason of the rule in the avoidance of conflict and confusion is as pertinent in such a case as in its general application.

While certiorari may not in general lie as appropriate procedure to test the legality of administrative acts not having the attributes of judgments, yet it is a proper and well-established remedy for unlawful removal from office. 5 R. C. L. 263. It would seem inconsistent with the views of pleading prevailing here (Boody v. Watson, 64 N. H. 162, 171, 9 A. 794; Gage v. Gage, 66 N. H. 282, 293, 29 A. 543, 28 L. R. A. 829; Walker v. Walker, 63 N. H. 321, 322, 56 Am. Rep. 514) that the legality of suspension may not thereby be tested when that of removal may be. Difference in the character of the acts is not enough to call for difference in the form of procedure when it is suited for the purpose and is not restricted by any positive rule Imposed by statute or substantive law.

On the inquiry whether the commission acted within its powers in suspending without...