State v. Lasher

• Decision Date: 09 March 1899
• Citation: 42 A. 636,71 Conn. 540
• Court: Connecticut Supreme Court
• Parties: STATE ex rel. SOUTHEY v. LASHER.

42 A. 636

71 Conn. 540

STATE ex rel. SOUTHEY

v. LASHER.

Supreme Court of Errors of Connecticut.

March 9. 1899.

Case reserved from superior court, Fairfield county; William T. Elmer, Judge.

Information in the nature of quo warranto by the state, on the relation of Alfred G. Southey, against Benjamin F. Lasher, to determine the validity of respondent's election and appointment as street commissioner of the city of Bridgeport The superior court found the facts, and reserved the case for the consideration and advice of the supreme court of errors. Judgment of ouster advised.

This was an information in the nature of a writ of quo warranto. It sets forth that the relator was on the 10th day of June, 1898, duly and regularly elected and appointed by the board of public works of the city of Bridgeport to the office of street commissioner of said city; that he accepted said appointment, and on the 18th day of the same month duly qualified, and entered upon the duties of said office; that the defendant on said 18th day of June, 1898, and thence continually hitherto, without legal warrant, claim, or right has used and exercised, and still does use and exercise, the several powers, duties, and privileges belonging to said office of street commissioner, concerning which said powers, duties, and privileges the defendant has usurped, and still does usurp, at said Bridgeport, to the great damage and prejudice of the rights of the said city of Bridgeport and of the relator. The defendant, not denying the averments of the information, says that he has not at any time usurped, and does not now usurp, said office; but that, on the contrary, he was on the 20th day of May, 1898, duly and regularly elected and appointed by the said board of public works of the said city of Bridgeport to the office of street commissioner for the period of one year from said date, and until his successor should be duly chosen and qualified; that he accepted said election, duly qualified, and entered upon the duties of said office; and that by virtue of the said election and qualification he has from said day continued, and still continues, to act as such street commissioner. And he prays that, therefore, the said office and its privileges be adjudged to him. There was a hearing. The court made a finding of the facts, and reserved the case for the consideration and advice of this court. The facts necessary to be considered in giving advice in this case (condensed from the finding) are these: The charter of the city of Bridgeport has, since its earliest organization, provided for the existence of several boards, to be appointed by the mayor. One of these was a board of public works, to consist of six members. At the 1895 session of the general assembly the charter was wholly revised. This revised charter went into effect on the 1st day of July, 1895. It provided in its nineteenth section that "there shall continue to be a board of public works, and of charities, each of which shall consist of six members." The members held office for three years. The appointments were so arranged that two members went out of office, and two new ones were appointed, each year. Other boards were also provided for in the charter. The members of all such boards were to be appointed by the mayor. Another section provided that: "The mayor shall ex officio be a member of said respective boards but shall have no vote in any of their proceedings except in case of a tie vote. He shall preside at all meetings of said respective boards at which he may be present." The common council of said city had, pursuant to authority given by the charter, passed an ordinance, "that the board of public works shall keep an accurate and correct record of all their official proceedings," etc., and that "they shall have power to make needful rules and regulations for the conduct of the business and affairs of said department, and for the control and regulation of the employes thereof." Acting under this ordinance, the board of public works, at a meeting held in May, 1896, adopted a body of rules, one of which was that "the board shall during the month of May in each year elect a president, a clerk, a street commissioner, and other officers; and each of said officers shall hold office for the term of one year from the date of such election, and until his successor is elected." On the 21st day of September, 1897, the board repealed the rules of May, 1896, and adopted a new body of rules, namely: "Section 1. The board of public works shall during the month of June in each year elect the following officers, to wit, a president, a clerk, a street commissioner, a superintendent of bridges; and each of said officers shall hold office for the term of one year from the date of his election, and until his successor shall be elected. Sec. 2. The clerk of said board shall keep an accurate and correct record of all the official proceedings, orders, contracts," etc., "of said board," etc. Sections 6 and 7 prescribed the duties of the president of said board, viz. that he shall preside at all meetings when the mayor is not present. It was his duty, under the rules of the board, to make all appointments of committees of members of said board, to which standing committees was referred the business coming before said board for appropriate action. He was also empowered, under the rules, to call meetings of the board whenever he deemed it necessary. "Sec. 9. No motion to repeal or amend the foregoing rules shall be entertained by the president or presiding officer of the board of public works, unless notice of such repeal or amendment has been given at the last preceding meeting, unless by unanimous consent of all members present." For the year following the 1st of June, 1897, the members of said board were Mr. Downer, Mr. Pierce, Mr. Somers, Mr. Ferguson, Mr. Waterhouse, and Mr. Thorne. On the 4th day of June, 1897, Mr. Somers was elected by said board to be its president. He has ever since continued to hold said office. At a meeting of said board duly called and held on the 10th day of May, 1898,—all the members being present,—Mr. Waterhouse gave notice that "at the next meeting of this board he would move to repeal or amend the rules of this board in accordance with such rules." At the next meeting of the board, duly called and held on the 20th day of May, 1898,—all the members being present, and the mayor being present and presiding,—action was taken as follows: "Mr. Waterhouse presented the following: 'According to my notice to this board at the last meeting, I hereby offer the following resolution: Resolved, that the last rules adopted by this board be, and the same are hereby, repealed.' Mayor Taylor ruled that the resolution was not in order, that such action was illegal, and declined to put the motion. Mr. Downer raised the point of order, that the notice given by Mr. Waterhouse at the last meeting was not a legal notice, under the rules, as it was not definite. The mayor sustained this point of order, and declined to put the motion. Mr. Pierce then declared that, as the mayor declined to put the motion, he would do so himself; and he called for a rising vote on the adoption of the motion, which resulted as follows: In the affirmative, Messrs. Pierce, Ferguson, Thorne, and Waterhouse. Mr. Pierce then declared the motion carried. Mr. Downer objected to this action, claiming that it was illegal. Mayor Taylor instructed the clerk not to make any record of this action, as it was illegal. Mr. Ferguson moved that the clerk be directed to record the proceedings. Mr. Pierce called for a rising vote on the motion, which resulted as follows: In the affirmative, Messrs. Pierce, Ferguson, Thorne, and Waterhouse. Mr. Pierce declared the motion carried. The board then, on the motion of Mr. Thorne, proceeded to an informal ballot for street commissioner, by a rising vote, called for by Mr. Pierce, which resulted as follows: Affirmative, Messrs Pierce, Ferguson, Thorne, and Waterhouse. The clerk was by the same vote directed to count the ballots. Result of ballot, Benjamin F. Lasher, 5. The board then voted, by a rising vote,—the motion being put by Mr. Pierce,—to proceed to a vote by a formal ballot for street commissioner, and it resulted as follows: Affirmative, Messrs. Pierce, Ferguson, Thorne, and Waterhouse. Result of ballot, Benjamin F. Lasher, 3; James Hughes, 1. Mr. Pierce declared that there was no choice, and another ballot was taken, which resulted as follows: Benjamin F. Lasher, 4. Mr. Pierce declared Mr. Lasher elected street commissioner. * * * The mayor, Mr. Taylor, desired the clerk to enter on the record his formal protest against all the proceedings in which Mr. Pierce acted as chairman, claiming that all such proceedings were illegal. Mr. Downer also protested on the same ground." It is found that at said meeting Mr. Somers, the president of the said board, was not requested by Mr. Pierce or either member of the board to put said motion, and that said Pierce was not requested by Mr. Somers to put said motions to vote, or to declare said vote, or to act in the premises at all.

Stiles Judson, Jr., for relator.

Robert E. De Forest and John J. Phelan, for respondent.

ANDREWS, C. J. (after stating the facts). The information charges that the defendant has usurped, and that he still does usurp, the office of street commissioner of and for the city of Bridgeport. The defendant admits that he holds and occupies the said office, but he denies that he has at any time usurped the same. On the contrary, he insists that he was duly and legally elected to that...