State ex rel. Lewis v. Turney

• Decision Date: 14 June 1922
• Citation: 97 Conn. 496,117 A. 499
• Court: Connecticut Supreme Court
• Parties: STATE ex rel. LEWIS v. Turney et al.

117 A. 499

97 Conn. 496

STATE ex rel. LEWIS v. Turney et al.

Supreme Court of Errors of Connecticut.

June 14, 1922

Case Reserved from Superior Court, Fairfield County; Isaac Wolfe Judge.

Mandamus by the State, on the relation of George F. Lewis, against Robert B. Turney and others.

Application for a rule to show cause why a mandamus should not issue requiring the respondents, members of the town council of the town of Stratford, to show cause why the court should not order an election for recall of a member of the council, in accordance with the provisions of section 20 of " An act establishing a town council and manager form of government in the town of Stratford," or that a peremptory writ of mandamus issue to compel the council to order an election as provided by section 19 of said act for member of the council. Case reserved for the advice of Supreme Court.

Judgment advised sustaining relator's demurrer, and that judgment be thereupon rendered in favor of the relator in accordance with the stipulation of the parties.

William H. Comley, Jr., of Bridgeport, for relator.

Edward K. Nicholson, of Bridgeport, for respondents.

WHEELER, C.J.

In section 2 of " An act establishing a town council and manager form of government in the town of Stratford" (Special Laws of 1921, p. 1048), provision is made for the Constitution of a council to consist of nine members, to be elected from the districts formed by the act. Provision is made in the act for the recall and removal from the council of any of its members by the electors of the district which he represents. The electors of the town of Stratford adopted this act and chose a council of nine members in October 1921. Six identical actions are pending in the superior court, of which this action against Robert B. Turney is one, to secure the recall of six of the nine members. The procedure for the recall of a member is given in sections 17, 18, and 19 of this act. All of the requirements to set in motion the procedure of recall in this case have admittedly been taken, except in two particulars. Section 17 provides that-

" Any elector of a voting district may make and file with the town clerk an affidavit containing the name of the council member whose removal is sought and a statement of the grounds for removal."

The filing of this affidavit is the initial step in the required procedure.

The respondents allege, in paragraph 8 of their answer, that-

" The grounds stated in the affidavit were not true in so far as the affidavit states that the electors of the third district had petitioned the said Robert B. Turney to rescind the resolution passed by the said council, there being no petition filed with the said council or with the said Turney requesting him to vote to rescind the resolution passed by the said council."

The respondents justify the refusal to call an election upon the recall petition because one of the allegations included in the charges set forth in the affidavit is untrue.

The second reason assigned for respondents' refusal to call an election is the inadequacy of the certificate required to be filed by the town clerk. Section 18 provides that-

" Within ten days after the filing of the petition the town clerk shall ascertain whether or not the petition is signed by the requisite number of electors and shall attach thereto his certificate showing the result of such examination."

Section 19 provides that-

" If the petition or amended petition shall be certified by the town clerk to be sufficient he shall submit the same with his certificate to the council at its next meeting and shall notify the member or members whose removal is sought of such action."

The town clerk within said 10 days after the filing of the petition attached to the petition a certificate in the following form:

" This is to certify that I have carefully examined the petition seeking the recall of Robert B. Turney, councilman, from the Third district, filed with me as town clerk on April 17th by George F. Lewis, A. L. Nettleton and Nestor Light, all bona fide electors of the Third district; that as a result of said examination I further certify that the said petition is signed by at least fifteen per centum of the qualified voters of said Third district who were entitled to cast their votes at the last preceding town election. Attest, May Morehouse, Town Clerk."

The respondents allege that this certificate is defective because it is " not certified by the town clerk as being sufficient as directed by the said section 19." These two alleged defects in the recall procedure are set up in the answer to which the relator has demurred upon the ground that both affidavit and certificate comply with the requirements of the act. The questions arising upon the demurrer are reserved for the advice of this court, and the parties stipulate that final judgment may be entered upon the decision of the questions arising under the answer and the demurrer to the second defense.

We take these grounds of demurrer up in the order stated. The charges set up in the affidavit are that the respondent Turney failed to perform the duties of his office in a manner desired by the majority of the electors of the district he represented, and that he refuses and neglects to comply with the wishes and requests of the electors, in that he refuses to rescind the resolution passed by the council, purporting to discharge R. H. Hunter, town manager, and continues to hold said office although a large majority of the electors of said district consider that he no longer properly represents them. These charges are not alleged to be, nor claimed in argument to be, inaccurate or insufficient. But the charges also recited that the respondent Turney had been petitioned by the electors to vote to rescind the resolution purporting to discharge...