State Ex Rel. Bergin v. Goodrich

84 A. 99 | Conn. | 1912

The court below ruled that the alleged office in controversy is not a public office, and for that reason dismissed the information. State ex rel. Stage v.Mackie, 82 Conn. 398, 400, 74 A. 759. The appeal charges that this ruling was erroneous, and the briefs of counsel are, for the most part, devoted to a discussion of the question thus presented, and of another hereinafter referred to. We have no occasion to enter upon the discussion of either of these matters, since both are rendered altogether immaterial by the facts, stipulated and found, which disclose that the information was properly dismissed for other manifest reasons, even upon the assumption that the clerkship was a public office.

The respondent rightfully took office in January, 1910, under an appointment at the pleasure of the board. The fact that the board's membership, as it then was, became entirely changed two years later, did not affect its legal identity, or, by force of the change, terminate his tenure of office. Raymond v. Fish, 51 Conn. 80,101; People ex rel. Le Roy v. Foley, 148 N.Y. 677,43 N.E. 171. Until the board, in some sufficient manner, should indicate that its pleasure was that his existing relations to it should cease, he would be no intruder. It has never passed a vote directly to that effect. It has never taken other action which could be said to accomplish that result, except it be its action of January 2d 1912, by force of which the relator claims to have been chosen to the position the respondent was filling. If, as the result of this action, the relator was lawfully chosen, the respondent's term of office was immediately terminated; if he was not, there was not then, and never has been, such termination. The question at issue thus becomes resolved into one as to the legality of the relator's claimed election.

The brief of the relator's counsel attacks the correctness of the mayor's ruling that the relator was ineligible for the position. It matters not whether he was eligible or ineligible. He was one of the seven members of the board; he voted for himself; and without his vote there was no election. He could not be elected by his own vote, and was not elected. State ex rel.Oakey v. Fowler, 66 Conn. 294, 298, 32 A. 162, 33 id. 1005.

There is no error.

In this opinion the other judges concurred.