State v. Mackie

• Decision Date: 17 December 1909
• Citation: 74 A. 759,82 Conn. 398
• Parties: STATE ex rel. STAGE v. MACKIE.
• Court: Connecticut Supreme Court

74 A. 759

82 Conn. 398

STATE ex rel. STAGE

v. MACKIE.

Supreme Court of Errors of Connecticut.

Dec. 17, 1909.

Appeal from Superior Court, New Haven County; George W. Wheeler, Judge.

Information in the nature of quo warranto by the State, on the relation of Otto G. Stage, against Robert Mackie. There was a judgment ousting respondent from office and affirming the right of relator to it, and respondent appeals. Error, and judgment set aside.

The charter of the city of Waterbury provided that its board of aldermen might, in a manner prescribed, make ordinances "to provide for the appointment of a building inspector and to prescribe his duties." it also conferred upon the board "the power to provide for the appointment or election of such employes as are not otherwise provided for, and as may be required for the proper transaction of the business of the city, and to prescribe their duties and compensation." Having this authority, the board adopted an ordinance creating the office of building inspector, and defining the powers and duties of its incumbent. It was also provided that there should be a deputy building inspector, that he should act in place of the building inspector and exercise all of his powers during the latter's absence or disability, and in the event of the latter's death perform all of his duties until an appointment should be made to fill the vacancy, that he should be biennially appointed by the board in the month of January of the even numbered years, and that he should hold office for two years from the first Monday of February next following his appointment, and until his successor was duly appointed and qualified.

Under this ordinance one Smith was appointed for the term of two years from the first Monday of February, 1904. In April, 1903, the General Assembly passed a special act (14 Sp. Laws, p. 619), which provided that the building inspector and assistant building inspector of the city of Waterbury then in office should hold their respective offices during good behavior subject to a power of removal in a manner prescribed. Smith died March 5, 1900, and the board in June elected the relator deputy building Inspector to fill Smith's unexpired term. The relator thereupon qualified and entered upon the duties of the position. January 20, 1908, the board proceeded to the election of a deputy building inspector for the term of two years from the first Monday of February next following. The votes of the entire board were cast for the respondent, who was a member of the board, present, and voting for himself and lie was declared appointed. The respondent thereupon qualified, and entered upon the duties assigned to said position, which he has since continued to perform to the exclusion of the relator. The board of aldermen took no action declaring said position vacant, or creating a vacancy therein, except said appointment of the respondent. The relator made ineffectual demand of the respondent for the office, which is one of profit. The relator claims the office, contending that his appointment thereto was one at the will of the board of aldermen, and that the board has taken no lawful action terminating his term. He contends that the attempted appointment of the respondent as his successor cannot have the effect of either terminating his term or of entitling the respondent to succeed him, since the respondent was a member of the board of aldermen and voted for himself, and for the further reason that his duties as inspector of buildings would be incompatible with his duties as an alderman.

Francis P. Guilfoile, for appellant.

James M. Lynch, for appellee.

PRENTICE, J. (after stating the facts as above). Quo warranto proceedings lie to prevent the usurpation of a public office or franchise. These were begun to try the title to a position attempted to be created by an ordinance of the city of Waterbury, and attempted to be filled by the board of aldermen of the city. They must fail for the reason that there is no such office. To justify a resort to the extraordinary remedy here invoked, there must be an office legally authorized and constituted. State v. North, 42 Conn. 79, 86; Commonwealth v. Dearborn, 15 Mass. 125; High on Extraordinary Legal Remedies, § 625. The position in question is one to which the ordinance creating it attempted to attach important powers and functions of government belonging to the sovereignty, and therefore was a "public office," as distinguished from a mere employment or agency resting on contract, and to which such powers and...