Avery v. Studley, Mayor

50 A. 752, 74 Conn. 272, 1901 Conn. LEXIS 57

• Court: Supreme Court of Connecticut
• Decided: December 20, 1901
• Status: Published

Opinion

Hamersley, J.

The mayor of New Haven removed the plaintiff from the office of police commissioner. The plaintiff appealed from the order of removal to the Superior Court. The court affirmed the action of the mayor, and this appeal is from that judgment.

The reasons of appeal allege that the court erred in overruling the claims of law made by the plaintiff upon the trial. These claims were that the mayor had no jurisdiction of the subject-matter of removal, and that, if he had jurisdiction, the order of removal was illegal by reason of errors committed by the mayor in the course of the hearing before him. All the errors assigned are based on the assumption that the action of the mayor in removing one of his subordinates, is judicial and strictly analogous to the amotion of a corporate officer by a municipal corporation, for the commission of some offense by which the right to the office is forfeited; or to the deprivation of an officer of an ecclesiastical corporation for the commission of a similar offense. If this assumption is correct, it may he that some of the errors assigned are well taken. We think that it is not correct.

The charter of the city of New Haven as revised in 1899 (13 Special Laws, pp. 388-454) is a wide departure from those grants of franchises by which the municipal corporations of England were formerly established, and which were largely followed by our acts creating cities, first enacted in 1784. It is also a departure from the modern changes in city charters, by which a large portion of corporate and governmental power is assigned to independent boards. The present charter of New Haven seeks to secure good government through the concentration of responsibility and power in the mayor. At the biennial elections the freemen choose the mayor, the legislative body, and a few officers whose duties do not relate to the active conduct of municipal business, such as a clerk and comptroller.

The mayor has a power of veto upon all legislative acts, which can be over-ridden only by a two-thirds vote. With the exceptions named, and excepting also the officers of the legislative body, and of the City Court, every officer and every employee in the government of the city and the conduct of its business is directly or indirectly the appointee of the mayor. The duties of the mayor as set forth in § 11, and throughout the charter, cover the whole range of executive power, and in terms make him “responsible for the good order and efficient government of said city.” He is, for practical purposes, invested with the whole executive power; including, of necessity, the appointment and removal of those subordinate officials for whose conduct he is responsible. He appoints directly the governing body for each municipal department, viz., the boards of finance, of police commissioners, of fire commissioners, a majority of the board of park commissioners, the boards of health, of library directors, of education, of charities and correction, and the director of public works; also the chief executive officer or superintendent, and heads of bureaus in these departments, and the other principal officers not connected with these departments. He appoints indirectly, through these boards and superintendents, the other officers and employees of the city.

But the power of appointment and removal, thus given to the mayor directly, and indirectly through his subordinates, is affected by another main purpose of the charter. It seeks to secure good government, not only through the power and responsibility centered in one chief magistrate, but also by treating fitness and merit as the controlling reason in appointment of municipal officers and agents, and by separating the administration of municipal affairs from the control and influence of party politics ; and to this end requires nearly all appointees, except those directly appointed by the mayor, to be taken from those approved as competent by the civil service board, and provides that appointments and removals shall not be made for political reasons. For this reason certain restrictions are placed on removals made by the governing body of city departments, and bjr the heads of bureaus. And for the same reason, removals by the mayor are to be made in the manner prescribed in § 12, and this mode is repeated in § 213, after the various modes of maldng the mayor’s appointments have been detailed.

We think it evident that this mode of removal is rather a mode of exercising the power of removal incident to executive appointment, than a ^Mim'-judicial power to hear and determine official offenses, punishable by a forfeiture of office. The first step in removal is not to be taken until the mayor has reached a belief that the officer is incompetent, or unfaithful, or that his removal is demanded by public interest. He cannot act on this belief without making a public record of the grounds that have convinced him, and giving the party affected a full hearing. If this hearing is treated as the trial of an officer for the commission of an offense which forfeits his office, then the legislature has provided for a trial and conviction before a judge who must disqualify himself by forming an opinion, before he can act. The opinion, finding, or conclusion which the mayor must reach, after a hearing, is in truth similar in character to that which he must reach before making an appointment. Is he competent? Is he honest ? Can he serve the city’s interest ? The mayor must find an affirmative answer to these questions before he can honestly make an appointment. Before he can legally make a removal he must, after notice and hearing, find an affirmative answer to one or more of these questions: Is he incompetent? Is he unfaithful ? Does the public interest demand his removal? The notice to the officer to be removed must contain a fair statement of the charges or grounds which have influenced the mayor in forming his belief. The hearing given to the officer in reference to the truth of these grounds, as facts, as well as to the broader question of public interest, must be full. When the hearing is finished, the mayor must answer the questions in view of all he has heard, and may remove, or retain in office, in exercise of his official discretion. This view is confirmed by § 139, which specifies some eleven offenses as grounds for removal of any municipal officer, and provides the mode for the judicial trial of an officer charged with the commission of any such offense; and by way of distinguishing such removal from the power of removal belonging to an appointing officer, § 143 expressly excludes any possibility of construing the provisions of this punitive removal as limiting or changing the provisions for removal of his appointees by the appointing officer, as defined in other provisions of the charter.

The foregoing considerations determine the nature of the appeal to the Superior Court. The removal of an officer upon conviction of an offense which forfeits his right to hold the office is an act mainly judicial, and perhaps administrative only as connected with the exercise of the police power. The removal of an officer as incident to the executive power of appointment, is not judicial, and, even where such removal is restricted by the establishment of certain precedent formalities, it is not judicial in the same sense as a removal made wholly as a punishment for an offense.

It would be impracticable for the court upon appeal, to entertain all the considerations that must control or influence the mayor in exercising his discretion as to the removal. Such discretion is hardly transferable from tbe mayor to a court. The appeal, however, can properly bring before the court the validity of the removal, in view of the proceedings required by law before the removal is made.

We think the appeal is given for this purpose, i. e., to provide a summary process by which the court may revoke the order of removal in case any essential formality has been omitted, or, perhaps, in case it finds that the mayor has acted so arbitrarily as to defeat the real purpose of the law in modifying an absolute discretion in removal. This view of the mayor’s powers is fairly expressed by the language of the charter, and we could not restrict his power of removal to a mere adjudication of specific offenses charged, without limiting the intention of the legislature expressed in the whole structure and details of the charter as to the plan of the municipal government thereby established.' This plan may be to some extent an experiment, but it is the duty of the court to aid rather than to hamper its trial.

The first, second, and sixth reasons of appeal claim that the mayor had no power or jurisdiction to remove the plaintiff, because: (1) The particular acts of the plaintiff which influenced the mayor in finding the removal to be demanded by the public interest, were done by the plaintiff in the exercise of his official discretion. (2) Theseparticular acts were done during the term of office of the mayor’s immediate predecessor. (3) The mayor’s immediate predecessor knew of these acts and did not take any steps toward the removal of the plaintiff.

These claims are made under a misapprehension of the real nature of the mayor’s act of removal. He removes because, after an opportunity given to the officer to explain his conduct and to show that he ought not to be removed, he has become satisfied that the officer is so incompetent, or so unfaithful, or that for other reasons appearing his removal is so clearly demanded by the interests of the public, that it is his duty to remove him from office. For the wisdom or reasonableness of his decision he is responsible to those who placed him in power. Official discretion may have been so exercised by the person removed as to satisfy the mayor of his present incompetency, or unfaithfulness, or that his removal is a public necessity. Acts done before the commencement of the mayor’s term of office may be considered in reaching the mayor’s conclusion. Whether he could legally remove an officer without any ground, except conduct which his predecessor, after hearing, had decided did not furnish sufficient reason for removal, is a question not before us.

The third, fourth and fifth reasons of appeal claim that the order of removal is illegal, because, upon the hearing, the mayor denied a motion to make the charges more specific, and refused to permit the plaintiff to have the assistance of counsel. As we have said, this hearing is not a trial. There are not adverse parties and a judge. It is rather a necessary investigation by the executive precedent to the performance of an official duty.

The cases cited by the plaintiff as to the course of proceeding, where an officer is tried for the commission of an offense which forfeits his right to office, and, on conviction thereof, is removed by the trier, turn upon an adjudication of private right substantially differing from that which may be involved in this case.

The hearing before the mayor, however, while primarily in the interest of the public, to secure deliberate and honest action of the mayor in exercising his power of removal and such record of his proceedings as will fix his responsibility, does materially affect the interest of the person removed, and for this reason the mayor is bound to give him a full and fair hearing. It is possible that on such hearing the mayor’s conduct may be so unjust, unfair, and unusual, as to prove that the removal was not made honestly in the public interest, but arbitrarily, for political or personal reasons, and a removal so made would not be legal.

The refusal of assistance of counsel in a hearing of any kind, affecting the interests of a party to the proceedings, is unusual, and may tend to prove arbitrary and unfair conduct on the part of the person conducting the hearing; but does not in itself invalidate the result of a hearing, unless in a purely judicial proceeding, or in a trial before administrative officers closely akin to a trial in court. In this case, no claim is made that the mayor did not act honestly, and if it be true that he might more properly have conducted the hearing in a different manner, that mistake would not invalidate the removal. The fact that the Superior Court, after a trial, was satisfied that the removal was entirely justifiable, would seem to indicate that the mistake of the mayor, if any were made, did not injure the plaintiff.

The seventh reason of appeal, claiming that the trial court found certain specified facts without evidence, is not supported by the record; certainly so far as those facts áre material to the judgment rendered.

The error assigned “ in approving the order of the mayor upon the facts stated in the finding,” is too indefinite and general. It may mean that the facts do not support the court’s conclusion, because it erred in overruling the claims of law made upon the trial. If so, the claim has been fully considered. It may mean that there are not facts stated in the special finding sufficient to support the judgment, or that there are facts stated which are wholly inconsistent with the judgment rendered. If so, the exception is plainly unwarranted.

The record discloses no sufficient reason for a correction of the finding.

The trial court did err in ruling, at the opening of the trial, that the mayor and not the plaintiff had the affirmative of the issue. The error arose from a mistaken view of the question submitted to the court by the appeal. The plaintiff, however, did not except to the ruling, and was not injured by it.

There is no error in the judgment of the Superior Court.

In this opinion the other judges concurred.