State v. Fowler

• Citation: 32 A. 162,66 Conn. 294
• Court: Supreme Court of Connecticut
• Decision Date: 24 June 1895
• Parties: STATE ex rel. OAKEY v. FOWLER.

32 A. 162

66 Conn. 294

STATE ex rel. OAKEY

v. FOWLER.

Supreme Court of Errors of Connecticut.

June 24, 1895.

Case reserved from superior court, Hartford county.

Information and quo warranto on the relation of P. Davis Oakey against George W. Fowler, alleging that defendant usurped the office of collector of city taxes of Hartford, and claiming that relator is the collector. The superior court made a finding of facts, and reserved the questions arising thereon for the supreme court. Judgment of ouster advised against defendant, and relator declared to be the lawful collector.

W. J. McConville, City Atty., for relator.

W. F. Henney, City Atty., John H. Brocklesby, and Charles E. Perkins, for respondent.

ANDREWS, C. J. This is an information and quo warranto made to the superior court in Hartford county by the state's attorney in that county at the relation of the relator, P. Davis Oakey, a resident and freeman of the city and town of Hartford. It alleges that the relator is the lawfully elected and qualified collector of taxes in the city of Hartford, and charges that notwithstanding his election and qualification, since the 7th day of December, 1894, George W. Fowler, and continuously thereafter, without legal warrant, claim, or right, has usurped and still does usurp the franchise of the office of collector of city taxes for the term then being, and claims to be collector of city taxes and to have, use. and enjoy the liberties, rights, privileges, and franchises to said office appertaining; concerning which office, liberties, rights, privileges, and franchises said Fowler has usurped and is still usurping at said Hartford, to the damage and prejudice of said city and the said relator. Upon this information the court ordered that a rule be entered requiring the said George W. Fowler to show cause before said court, if any he has, why he usurps, and by what warrant he claims to have, use, and enjoy said office, and the rights, privileges, and franchises of the office of collector of the city taxes of the city of Hartford. At the time when said rule was made returnable said Fowler appeared in court and showed cause by the answer to said information, to which answer the attorney made replication, and the court ordered the parties to make a finding of facts, and reserved the questions thereon arising for the advice of this court The finding is as follows:

Finding of Facts.

1. On the first Monday of April, 1892, Frederick S. Brown, of the city of Hartford, was duly elected collector of city taxes for the city of Hartford for the term of two years, and until his successor was chosen and qualified, and entered upon the performance of the duties of his said office, and continued in the exercise of all the rights and in the performance of all the duties of said office until his death.

2. On the first Monday of April, 1894, said Frederick S. Brown was re-elected collector of city taxes for the city of Hartford for the term of two years, beginning on the 7th day of May, 1894, and until his successor was chosen and qualified.

3. On the 6th day of May, 1894, being the last day of his term of office, hitherto referred to in paragraph 1, said Brown died, and the office of collector of city taxes for the city of Hartford then and there became vacant. At the time of his death, said Brown, in addition to being collector of city taxes for the city of Hartford, was by virtue of an appointment by the board of selectmen on the first Monday of January, 1892, and his qualification under such appointment, collector of town taxes for the town of Hartford for the term expiring May 6, 1894.

4. By his death, on said 6th day of May, 1894, the office of collector of town taxes also became vacant On the first Monday of January, 1894, said Brown was also reap pointed by the board of selectmen of said town collector of town taxes for the town of Hartford for the term of two years, beginning May 7, 1894, and until his successor was chosen and qualified. On the 11th day of May, 1894, the board of selectmen of said town of Hartford, consisting of five members, containing in said membership George W. Fowler, the defendant, by ballot chose said George W. Fowler to fill the vacancy in the office of collector of town taxes for said town of Hartford for the unexpired term of said Brown, deceased. Thereafter, on the 21st day of May, 1894, said Fowler resigned said office of selectman and accepted said office of collector of town taxes, and on said last named date qualified for the office of collector of town taxes by filing a bond with said board of selectmen for the faithful performance of his duties as such collector, and entered upon the duties of his office.

5. Until November 26, 1894, there was no election by the board of aldermen to fill said vacancy in the office of collector of city taxes for said city of Hartford, although sundry meetings had been held for that purpose, beginning May 14, 1894. On said November 26, 1894, at a meeting specially called and warned by the mayor of the city for that purpose, said Oakey received a majority of two of all the votes cast, and was declared by the presiding officer, the mayor, to be elected to the office of collector of city taxes for the city of Hartford to fill the vacancy for the unexpired portion of the term of said Frederick S. Brown, deceased, and beginning May 7, 1894.

6. The relator, P. Davis Oakey, on the 7th day of December, 1894, qualified for the office of collector of city taxes as provided by law, and a warrant was issued to him by the mayor of said city on said last-named day, in due and legal form, for the collection of city taxes, and on said 7th day of December the relator made demand upon the said George W. Fowler for the surrender to the relator of all matters and things appertaining to said office, and said Fowler refused to deliver and surrender possession of the same to the relator, and still continues in the possession of said office and in the exercise of its functions.

7. No other election or appointment has been taken to fill the vacancy caused by the death of said Brown in the office of collector of city taxes, except as herein set forth.

8. The said George W. Fowler, who was not collector of town taxes and in that office at the time of the death of said Frederick S. Brown, having been appointed collector of town taxes by the selectmen on the 11th day of May, 1894, and qualified on the 21st day of May, 1894, as such collector, as above set forth, and no election having taken place by the board of aldermen at that time to fill the vacancy in the office of collector of city taxes, claimed that by operation of law he then and thereupon became entitled to the office of collector of city taxes, and to the exercise of its rights and franchises and the performance of its duties, and on the 21st day of May, 1894, tendered a bond to the mayor of said city, which the mayor took into consideration and refused to approve. The mayor also refused to issue, and never has issued, to said Fowler any warrant for the collection of city taxes. Thereupon said Fowler left said bond at the office of the city treasurer of said city, on the 5th day of July, 1894. After said 5th day of July, 1894, and up to the present time, said Fowler has collected the city taxes, and has been paid by the said city for the same to the 1st day of October, 1894, as provided for the collection of city taxes, and from said last-named date continuously up to the present time said Fowler has used and is still using the rights and franchises of said...