State ex rel. Butera v. Lombardi

• Decision Date: 31 March 1959
• Citation: 150 A.2d 309,146 Conn. 299
• Court: Connecticut Supreme Court
• Parties: STATE ex rel. Evo BUTERA v. Jeremiah F. LOMBARDI, Jr. Supreme Court of Errors of Connecticut

Page 309

150 A.2d 309

146 Conn. 299

STATE ex rel. Evo BUTERA v. Jeremiah F. LOMBARDI, Jr.

Supreme Court of Errors of Connecticut.

March 31, 1959.

Richard Hanna, Danbury, with whom was Louis DeFabritis, Danbury, for appellant (plaintiff).

David Goldstein, Bridgeport, with whom were Arnold J. Bai, Bridgeport, and, on the brief, Jacob D. Zeldes, New Haven, for appellee (defendant).

Before DALY, C. J., and BALDWIN, KING, MURPHY and MELLITZ, JJ.

MELLITZ, Associate Justice.

In this proceeding, in the nature of quo warranto, Evo Butera, hereinafter referred to as the plaintiff, seeks to test the right of the defendant to occupy the office of assessor of the city and town of Danbury. The facts are not in dispute. Special Acts 1935, No. 327, § 1, provides that the members of the board of finance of the town of Danbury, the members of the board of estimate and taxation of the city of Danbury, the major of the city and the first selectman of the town shall constitute a joint tax board for certain defined purposes, among which is the appointment of an assessor by a majority vote. 22 Spec.Laws, 185. The act provides further that no member of the joint tax board, city board of estimate and taxation or town board of finance, with the exception of the major and the first selectman, shall hold any public office, either elective or appointive, in the city or town government. Id., 186. A meeting of the joint tax board was held on May 14, 1957, for the purpose, inter alia, of appointing an assessor. The board comprised fourteen members. Three of them besides the mayor and first selectman held other positions in the city or town government. Before a vote was taken on the appointment of an assessor the right of these three to vote was challenged. The chairman, over objection, permitted them to vote. Seven votes were cast for the defendant and seven for the plaintiff. The chairman, pursuant to express authority in the special act, broke the tie by casting a second vote for the plaintiff and declared him elected. Exclusive of the votes cast by the challenged members and the second vote by the chairman, a majority of the votes were cast for the defendant.

It is conceded by both parties that the determination of the case turns on the status of one of the challenged members, Henry Rocano, who voted for the plaintiff and thereby brought about the tie vote which made it possible for the chairman to cast the deciding vote. Rocano was appointed to the board of estimate and taxation of the city while he was a member of the board of education of the town. At the time of the meeting on May 14, 1957, he purported to be a member of both boards. A contention that Rocano's position on the board of education was not a public office within the meaning of the statute was advanced by the plaintiff in the trial court but was abandoned and is not before us. The position of the plaintiff is that Rocano was a qualified member of the joint tax board and eligible to vote at the meeting of May 14, 1957, it spite of the fact that he had not formally resigned his position on the board of education. This is on the theory that when he became a member of the board of estimate and taxation, and so qualified for membership on the joint tax board, the statutory prohibition against holding other public office operated to vacate his position on the board of education. The defendant, on the other hand, argues that the statute deals with qualification for membership on only the boards specifically designated and any disqualification arising from the prohibition affects only eligibility to an office named in the statute and not to any other office held by the person. This would mean that Rocano was disqualified from membership on the board of estimate and taxation and so on the joint tax board. The defendant, in his brief, says that 'the precise, narrow question presented in this case [is] whether disqualification runs to the second office held and not the first office when the statute in issue establishes membership criteria for the second office.'

It has long been firmly settled at common law that a person may not at one and the same time rightfully hold two offices which are incompatible, and when he accepts and qualifies for a second office which is incompatible with the first, he vacates, or by implication resigns, the first. State ex rel. Schenck v. Barrett, 121 Conn. 237, 242, 184 A. 379; 42 Am.Jur. 940, § 78; note, 100 A.L.R. 1162, 1164. Where the holding of two offices at the same time is forbidden by constitution or statute, an incompatiblity is created similar in its effect to that of the common law, and as in the case of the latter, the acceptance of the second office operates ipso facto to vacate the first. Mechem, Public Officers § 429; 67 C.J.S. Officers § 23, p. 149. 'Where the holding of two offices by the same person, at the same time, is forbidden by the constitution or a statute, the effect is the same as in the case of holding incompatible offices at common law. In such case, the illegality of holding the two offices is declared by positive law, and incompatibility in fact is not essential. In each case the holding of two offices is illegal, it is made so in one case by the policy of the law, and in the other by absolute law. In either case the law presumes the officer did not intend to commit the unlawful act of holding both offices, and a surrender of the first is implied.' State ex rel. Walker v. Bus, 135 Mo. 325, 330, 36 S.W. 636, 637, 33 L.R.A. 616. Cases illustrative of the application of this principle of implied surrender of the first office where, by a constitutional or statutory provision, the holding of more than one office is expressly forbidden are: State ex rel. Camp v. Herzberg, 224 Ala. 636, 638, 141 So. 553; People ex rel. Myers v. Haas, 145 Ill.App. 283, 286; Chambers v. State ex rel. Barnard 127 Ind. 365, 26 N.E. 893, 11 L.R.A. 613; Lilly v. Jones, 158 Md. 260, 271, 148 A. 434; People ex rel. Henry v. Nostrand, 46 N.Y. 375, 381; McIntosh v. Long, 186 N.C. 516, 518, 120 S.E. 87; Darling v. Brunson, 94 S.C. 207, 210, 77 S.E. 860; State ex rel. v. Beveridge, 88 Or. 334, 336, 171 P. 1173; Caldwell v. Lyon, 168 Tenn. 607, 612, 80 S.W.2d 80, 100 A.L.R. 1152; Shell v. Cousins, 77 Va. 328, 332.

In People ex rel. Henry v. Nostrand, supra, a constitutional provision declared that sheriffs should hold no other office. It was held that one who held office as a commissioner to lay out and construct certain public highways vacated that office when he accepted the office of sheriff, to which he had been elected. In State ex rel. Camp v. Herzberg, supra, a statute creating the office of chairman of a city board of commissioners declared that no member of the commission should hold any office of profit or trust under the laws of any state. It was held that...