Turrill v. Erskine

Decision Date09 July 1947
Citation54 A.2d 494,134 Conn. 16
CourtConnecticut Supreme Court
PartiesTURRILL v. ERSKINE et al.


Appeal from Superior Court, New Haven County; Quinlan, Judge.

Action by Charles W. Turrill against George C. Erskine, superintendent of the Connecticut Reformatory, and another, to compel defendants to return plaintiff to his employment as a guard at the reformatory and to restore him to the roster of state employees. A judgment was rendered for defendants, upon demurrer to amended complaint being sustained and plaintiff failing to plead further, and plaintiff appeals.

No error.

Louis Feinmark, of New Haven, and Lester H. Aaronson, for appellant.

Harry L. Brooks, Asst. Atty. Gen., and William L. Hadden, Atty. Gen., for appellees.


MALTBIE, Chief Justice.

The plaintiff brought this action to secure an order requiring the defendant Erskine, superintendent of the Connecticut Reformatory, to reinstate him in an employment from which the superintendent had dismissed him and requiring the defendant Scoboria, the personnel director of the state, to restore him to the roster of state employees. The defendants demurred to the complaint as finally amended, the demurrer was sustained and, upon the plaintiff's failure to plead further, judgment was rendered for the defendants. The plaintiff has appealed. He primary issue presented is the validity and effectiveness of a section of the merit system law which, in its entirety, provides: ‘Any person holding a position in the classified service who shall be demoted, suspended, fined or dismissed, may appeal to the personnel appeal board. * * * An employee dismissed for the reason of economy or lack of work may appeal only on the ground that the order of dismissal has not been determined by the service ratings of employees, as required in section 678e.’ General Statutes, Sup.1943, § 427g. A secondary question is the right of the plaintiff, in view of that statute, to maintain this action.

The complaint alleged that the plaintiff was employed as guard at the reformatory and was within the classified service of the state and entitled to the benefits of the law establishing a merit system for state employees; that he was served with a notice of suspension from his employment and of a subsequent discharge, with the result that his employment was terminated and his name removed from the roster of state employees; and that the suspension and discharge were made arbitrarily, capriciously, illegally and without proper or legal cause, in violation of the merit system law. By an amendment to the complaint the plaintiff further alleged, that, in attempting to comply with that law, he filed an appeal with the personnel appeal board created by it, but that the board failed to determine whether or not his dismissal was justified, or whether or not he should be reinstated or the punishment inflicted upon him should be modified. The amendment then went on to state that the board was without power to take such action and anything it did would be a nullity; that the right of appeal to the board given in the statute was valueless to the plaintiff; and that the statute provides no valid remedy against an arbitrary, capricious or illegal discharge or suspension. The allegations of fact in the amended complaint were admitted by the demurrer.

The trial court sustained the demurrer upon the basis of its first paragraph. That merely alleged that the plaintiff was within the merit system law and subject to its provisions, and that he was discharged by the superintendent. The trial court based its ruling upon certain cases in which we have held that one cannot appeal to the courts under a statute and on that appeal claim the statute to be invalid. The first paragraph of the demurrer did not raise that issue. In the Practice Act of 1879 it was provided, and still is, that a demurrer ‘shall distinctly specify the reason or reasons why the pleading demurred to is insufficient.’ General Statutes, § 5507. A trial court should not, in passing upon a demurrer, consider other grounds than those specified. See Cornwall v. Hartford, 107 Conn. 351, 353, 140 A. 723; Foote v. Branford, 109 Conn. 358, 361, 146 A. 723. That aside, in making its ruling the trial court overlooked the fact that this proceeding is not an appeal from any administrative officer or board acting under the merit system law but is an action outside and independent of that law. In such a situation the principle upon which the trial court relied has no application. Whether or not the action can be maintained depends on other principles if for example the plaintiff is right in his contention that the appeal board under the merit system law had no power to afford him any relief, the question whether he could maintain an action at law to protect his rights would be decided upon the principles applicable to the doctrine of election of remedies. National Transportation Co. v. Toquet, 123 Conn. 468, 478, 196 A. 344. The trial court was in error in sustaining the demurrer upon the ground it stated.

If, however, any other of the grounds specified in the demurrer was well taken, we would be justified in upholding the decision of the court. Azzolina v. Order of Sons of Italy, 119 Conn. 681, 689, 179 A. 201; Conn.App.Proc., p. 53. One ground of demurrer was that it appeared from the allegations of the complaint as amended that the plaintiff's grievance, if any, is against the appeal board and not the defendants; and in their brief they make clear their claim that under the allegation that the board had failed to act upon the appeal the plaintiff's proper remedy was by mandamus to compel it to act. State ex rel. Redgate v. Walcott, 125 Conn. 160, 165, 3 A.2d 852; Slessinger v. Fairley, 340 Pa. 273, 277, 16 A.2d 710. A consideration of this ground of demurrer necessarily involves a determination of the question whether the statute providing for an appeal was effective to give the personnel appeal board power to afford relief to the plaintiff on the ground that he was improperly suspended and discharged.

In dealing with is own employees the state has broad powers. So far as appears the plaintiff's employment was for an indefinite time and, apart from the statute, he might have been discharged at any time; Emerick v. Connecticut General Life Ins. Co., ...

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23 cases
  • Zinker v. Doty
    • United States
    • U.S. Court of Appeals — Second Circuit
    • June 29, 1990
    ...constitutional rights by his discharge from state government employment pursuant to the statutes then in effect. In Turrill v. Erskine, 134 Conn. 16, 21, 54 A.2d 494 (1947), a decision that may be viewed as a forerunner to Justice Rehnquist's opinion in Arnett v. Kennedy, 416 U.S. 134, 94 S......
  • Smith v. Highway Bd.
    • United States
    • Vermont Supreme Court
    • October 7, 1952
    ...and lawful regulations thereunder in effect write into the contract of each employee the conditions which they embody. Turrill v. Erskine, 134 Conn. 16, 54 A.2d 494; Jones v. Board of School Directors, 55 N.M. 195, 230 P.2d 231; 17 C.J.S., Contracts, § 330, page 782. The law and regulations......
  • State ex rel. Bonner v. District Court of First Judicial Dist. in and for Lewis and Clark County
    • United States
    • Montana Supreme Court
    • May 14, 1949
    ...and efficiency of those within the classified service and to prevent discharge therefrom without just grounds.' In Turrill v. Erskine, 134 Conn. 16, 54 A.2d 494, 496, court said: 'The state, in adopting the merit system law, in effect voluntarily established conditions governing, among othe......
  • Fraser v. Henninger
    • United States
    • Connecticut Supreme Court
    • April 26, 1977
    ...Light & Power Co., 149 Conn. 99, 105, 176 A.2d 63; Lancaster v. Bank of New York, 147 Conn. 566, 579, 164 A.2d 392; Turrill v. Erskine, 134 Conn. 16, 19-20, 54 A.2d 494. The third ground of demurrer, addressed only to the first count of the complaint, claims "that any negligence alleged inv......
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