State v. Kennedy

• Decision Date: 25 May 1897
• Citation: 69 Conn. 220,37 A. 503
• Parties: STATE ex rel. HOSFORD v. KENNEDY.
• Court: Connecticut Supreme Court

37 A. 503

69 Conn. 220

STATE ex rel. HOSFORD

v. KENNEDY.

Supreme Court of Errors of Connecticut.

May 25, 1897.

Case reserved from superior court, New Haven county; Milton A. Shumway, Judge.

Information by the state on the relation of George D. Hosford against John A. Kennedy in the nature of quo warranto.Facts found and case reserved for advice of the supreme court of errors.Judgment of ouster advised.

The information alleged that on July 9, 1895, the relator, duly appointed a policeman by the warden and burgesses of the borough of Naugatuck, was duly designated and appointed by said warden and burgesses chief of police until he should be legally removed from office; that he duly qualified and entered upon the duties of his office; that on August 7, 1896, the warden and burgesses, having heard charges presented against the relator, did, by a vote of less than five burgesses, find the charges proved, and voted to suspend and remove the relator from the office of chief of police by a vote of less than five burgesses, contrary to the provisions of the borough charter; that the respondent on August 19, 1896, and from thence hitherto, has exercised said office without legal warrant, and during the time aforesaid has usurped, and still does usurp, the franchises to said office pertaining.The plea.In effect, denies that the vote suspending ami removing the relator was a vote by less than five burgesses; and alleges that the relator was by the vote of said warden and burgesses legally suspended and removed from his office as chief of police, and that said warden and burgesses also legally suspended him without pay; that afterwards the respondent, being a policeman of said borough, was designated by the warden and burgesses as chief of police.Upon trial the court found that upon the motion of August 7th, suspending and removing the relator from office, three burgesses voted in favor thereof and three burgesses in opposition, and thereupon the mayor voted in favor, and declared the same carried; that subsequently, and in like manner, the board suspended the relator as policeman for 10 months without pay; that thereupon the relator was removed and ousted from his office of chief of police, and the respondent was designated in his place as chief of police, and thence hitherto has exercised the office of chief of police, and has ousted the relator from said office, and kept him from the discharge of the duties thereof.The reservation presents the question of law involved as follows: "if the action of the warden and burgesses as above set forth was ineffectual in law to remove the relator from the office of chief of police, then I find that the respondent without legal warrant has used and exercised that office; but if the relator was, by said action, legally removed, then I find that the respondent has not usurped the office."

Goodwin Stoddard and William D. Bishop, Jr., for relator.

John O'Neill and William Kennedy, for respondentHAMERSLEY, J.(after stating the facts).The borough of Naugatuck was established by an act passed in 1893(Sp. Acts 1893, p. 190), and amended in 1895(Sp. Acts 1895, p. 155).The charter (section 63, cl. 35) authorizes the warden and burgesses "to establish and maintain a watch or police for said borough," and in section 60 specifically prescribes the manner of appointment and removal, the tenure of office, and the powers of the members of the "police" which may be established.The section as amended in 1895 is as follows: "Sec. 60.The warden and burgesses shall have power and authority from time to time, to appoint such number of policemen, not exceeding twenty-five, as they see fit, one of whom shall be designated as chief of police, who shall take the oath provided by law for constables of towns, and shall hold their offices until removed or expelled by said warden and burgesses for cause, but no policeman shall be removed or expelled by said board unless five of the burgesses vote in favor of doing so, and the action of said board so voting as afore said, shall be final, and no appeal shall be allowed there from; and such policeman shall have full power and authority within said borough, to arrest, with or without previous complaint and warrant, all such persons [stating in detail all powers conferred]."We think this section, in connection with section 63 and other parts of the charter, limits the number of members of the force or department of police which the borough is authorized to establish, vests the power of appointment and removal of all members in the warden and burgesses, prescribes the same tenure of office and manner of removal for all members, vests in all members the powers specified, and requires the designation or appointment of a head of the police who is a member of the police force, and counts as a policeman in determining the number of members that may be appointed, and whose office of chief of police embraces all the powers specified in this section, as well as those belonging to the head of the force.These provisions are prescribed by the charter, and cannot be altered by any action of the warden and burgesses.When the charter says that the "policemen"(including the one designated as chief of police) shall hold their offices during good behavior, it fixes the tenure of office of the chief of police; and, when it says that no policeman shall be removed unless five of the burgesses vote in favor of doing so, it applies as well to the policeman at the head of the department as to the subordinate policemen.The claim is made that the charter creates no such office as chief of police, but simply provides for an honorary title, coupled with some additional duties and emoluments, which may be given to one or another of the policemen, at the pleasure of the warden and burgesses.Such claim cannot be supported by a reasonable construction of language of section 60, and the charter plainly treats the position of chief of police as a public office in section 18, which provides that "the treasurer, collector, chief of police and bailiff of said borough shall give sufficient bonds with surety to the warden * * * for the faithful performance of their respective duties before entering on the...