McDermott v. City of New Haven

• Decision Date: 28 February 1928
• Court: Connecticut Supreme Court
• Parties: MCDERMOTT v. CITY OF NEW HAVEN.

140 A. 826

107 Conn. 451

MCDERMOTT v. CITY OF NEW HAVEN.

Supreme Court of Errors of Connecticut.

February 28, 1928

Appeal from Court of Common Pleas, New Haven County; John Rufus Booth, Judge.

Action by George E. McDermott against the City of New Haven to recover compensation alleged to be due the plaintiff as a police officer of the defendant city. Judgment for plaintiff and defendant appeals. No error.

Louis Feinmark and Samuel A. Persky, both of New Haven, for appellant.

Kenneth Wynne and Thomas R. Robinson, both of New Haven, for appellee.

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

MALTBIE, J.

The plaintiff brings this action to recover salary claimed to be due him as a police officer of the defendant city. On December 21, 1926, he was suspended, without pay, by the chief of the police department, by virtue of authority conferred upon him in the city charter. The chief reported this action to the board of police commissioners in writing and on January 3, 1927, it voted to continue the suspension. On February 7, 1927, on recommendation of the chief the board again continued it. On March 7, 1927, the plaintiff was dismissed from the department. The trial court rendered judgment for him to recover salary for the period beginning ten days after his suspension by the chief and ending with his dismissal, and the defendant has appealed.

The defendant's charter provides that the chief of the police department shall assign to duty all members of it and it also gives him power to suspend, without pay, any member--

" provided, however, that no such suspension shall be continued for a period of more than ten days without affirmative action by the commissioners of his department, which action shall not be taken until after a hearing upon charges preferred in writing; a copy of such charges shall be left with said officer at least forty-eight hours prior to the time fixed for such hearing." Charter of the City of New Haven § 60; 13 Special Laws, p. 407.

There is no pretense that there was in this case any compliance with the limitations upon the powers of the commissioners which require a hearing upon charges preferred in writing, served upon the officer at least forty-eight hours prior thereto. There was then no valid suspension of the plaintiff after the initial action of the chief. State ex rel. Rylands v. Pinkerman, 63 Conn. 176, 193, 28 A. 110, 22 L.R.A. 653; State ex rel. Hosford v. Kennedy, 69 Conn. 220, 226, 37 A. 503; Thompson v. Troup, 74 Conn. 121, 123, 49 A. 907; Sullivan v. Martin, 81 Conn. 585, 591, 71 A. 783. That under the circumstances the plaintiff ought to have been suspended, and that the same result might have followed had these limitations been complied with, furnish no excuse for the disregard of the plain mandate of the charter.

Police officers of the defendant city are public officers. McDonald v. New Haven, 94 Conn. 403, 411, 109 A 176, 10 A.L.R. 193. The salary provided by law for a public officer does not arise out of contract and is not dependent on the amount and value of the services rendered, but it belongs to him because the law attaches it to the office he holds. Sibley v. State, 89 Conn. 682, 685, 96 A. 161, L.R.A. 1916C, 1087. It is generally held that, where a public officer is wrongfully suspended or expelled, he is entitled to recover the salary accruing during the period he is thus unlawfully removed from his office. Emmitt v. New York, 128 N.Y. 117, 28 N.E. 19; Fitzsimmons v. Brooklyn, 102 N.Y. 536, 538, 7 N.E. 787, 55 Am.Rep. 535; Newberry v. Smith, 157 Mich. 181, 121 N.W. 746; State ex rel. Chapman v. Walbridge, 153 Mo. 194, 54...