71 A. 783 | Conn. | 1909
New Haven has a "department of police service" which is under the management and control of a board of six police commissioners who are appointed by the mayor. The city charter, §§ 12 and 213, gives the mayor power to remove from office any person appointed by him or by any of his predecessors, "if, after a full hearing, he shall find that such officer is incompetent or unfaithful, or that the requirements of the public service demand his removal." 13 Special Laws, pp. 395, 451. The defendant, as mayor of the city, having first duly summoned the plaintiff to show cause why he should not be removed, after a full hearing removed him from the office of police commissioner, upon the grounds that he was incompetent and unfaithful, and that the requirements of the public service demanded his removal, basing this finding upon the fact that the plaintiff, while commissioner, in the presence of a certain policeman, at an election held within the city, had peddled and offered ballots to voters within seventy-five feet of the polling-place, thus violating the statutes of the State (General Statutes, § 1653), and had thus demoralized the efficiency of the police department and its officers and hindered the latter in the performance of their duties.
The plaintiff in the Superior Court, to which he appealed from the order of the mayor, and in this court, to which he has appealed from the judgment of the Superior Court, has assumed that the cause of his removal was his offense against the laws of the State, and has insisted that the mayor had no jurisdiction to find him guilty of such an offense, and that, if he had such jurisdiction, he was acting in a judicial or quasi-judicial capacity while conducting the hearing, and committed errors therein which rendered his finding and order illegal. *588
In Avery v. Studley,
It may be, but it is not necessary here to decide the point, that the plaintiff, on proof of the facts which were proven to the satisfaction of the mayor in this case, would be liable to a forfeiture of his office in a proceeding under §§ 139 and 140 of the charter. A proceeding under those sections is to be instituted by not less than twenty freeholders of the city, by a complaint to the Superior Court, and if successful may result not only in the forfeiture of his office by the person proceeded against, but a judgment disqualifying him from holding any city office for the period of five years. Some of the grounds for the proceeding are such as, if proved in a proceeding under § 12 before the mayor, would warrant him in finding the officer charged incompetent *590
and unfit for his office. But § 143 provides that nothing contained in the four preceding sections shall be construed to limit or change any of the powers or duties concerning the removal of officers and employees from office, as defined in other provisions of the charter. Quite likely it was intended, by §§ 139 to 142, that should the mayor refuse, upon proper request, to remove an incompetent and unfaithful appointee, such removal might be effected by a proceeding, less summary but more far-reaching, in the Superior Court upon the complaint of the freeholders of the city. But the mayor may in a proper case, as incident to the power of appointment, proceed to remove such an appointee for the causes named in § 12 and repeated in § 213, although for similar causes he could be removed from the office by proceedings under the provisions of §§ 139 and 140. This is what he did; and under the decision in Avery v. Studley,
Several of the plaintiff's reasons of appeal assign the unconstitutionality of § 213 of the city charter, in that it does not provide an impartial judicial tribunal for the trial of the charges. The hearing before the mayor in such a proceeding is not a trial. It is a hearing given in the appointee's interest, to enable him to be heard as to the sufficiency of the causes given for his contemplated removal. The limitation placed by the charter upon the executive power of removal as incident to the power of appointment is satisfied, "when the mayor has stated to the officer the cause which induces him to contemplate his removal, being a proper and sufficient cause," and "has given him an opportunity to be heard in relation thereto, and assigns this cause in making the removal." State ex rel. Williams v. Kennelly,
The question whether the mayor acted unfairly, unjustly, and arbitrarily, which is attempted to be raised by several of the reasons of appeal, is a question of fact, and, if open to the plaintiff in the Superior Court, has been answered by the court's finding that the plaintiff was given a full, fair and impartial hearing.
The proceeding before the mayor not being a trial, but merely a hearing precedent to his executive action relative to the plaintiff's removal, the appeal therefrom to the Superior Court did not transfer the proceeding to that court for a rehearing of the facts. The purpose of the appeal is 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 executive power has been exercised so arbitrarily as to defeat the real purpose of the law in modifying an absolute discretion in removal. Avery v. Studley,
Numerous exceptions were taken to the court's exclusion of evidence offered by the plaintiff to prove the nonexistence of the cause assigned for his removal by the mayor, and to prove that the defendant was actuated by political reasons in making the removal. So far as the evidence was offered for the purpose of retrying questions of fact which had been determined by the mayor, it was properly rejected, because the decision of these questions by him was final. Avery v. Studley,
There is no error.
In this opinion the other judges concurred.