State ex rel. City of Waterbury v. Martin

Pardee, J. By its charter the city of Waterbury is author, ized to care for its public streets through the instrumentality of a board of road commissioners. The second section of ai? ordinance relating to streets, passed under the charter, provides that “ there shall be appointed by said board a street inspector, who shall hold office not exceeding three years, but shall be removable by said board for due cause, &c.” This officer comes therefore to the discharge of his important duties by accepting an appointment; he enters into no contract relation to the city; he can resign and cease to discharge the duties of the place without exposing himself to an action for a breach of contract; he can enforce his right to the place and salary unless removed for cause; neither the commissioners nor the council can, at-will, deprive him of either. He is therefore a public officer, and as such subject to the operation of the writ of quo warranto. The charter empowers the common council to establish the [481] duration of the term of the office of street inspector at or within the period of three years. This power of limitation has not been otherwise exercised than by the passage of the ordinance quoted above. Under that James M. Colley was appointed on April 11th, 1872, for the term of three years from January 1st, 1872; he resigned on April 1st, 1874; David Welton was appointed for a term not to exceed three years; for some reason not of record Colley was re-appointed on May 5th, 1875, for a term ending January 1st, 1878, and on January 5th, 1878, was appointed for a third term ending on the first Monday in May, 1878. The council having refrained from any direct exercise of its power to determine the length of time during which each inspector should hold office under one appointment, and having recognized and acquiesced in the several appointments made by the commissioners, with a different duration affixed to each, the term of office of the appointee is that which they name, if within charter limits, at the time of his election. The term of James M. Colley extended to the first Monday in May, 1878. Therefore the action of the commissioners on the 9th of March, 1878, in declaring the office to have been vacant from the first day of January preceding, and in electing the respondent thereto, was null and void; they had previously exhausted, for a term, their power in reference to the appointment. Colley had a right to the office, unless removed for cause, until the expiration of his term. On March 10th, 1878, the clerk of the commissioners notified the respondent of his election; on March 14th he accepted the office and took the prescribed oath. Here was the form of an election by commissioners who had the power, in a proper manner and at a proper time, to elect; here was an acceptance, and there has been no resignation by the respondent. Since the expiration of Colley’s term no other person has exercised or claimed the office; and since that time the respondent has been in a position to bind the city by his acts as an inspector de facto. It is true that on June 18th, 1878, the commissioners stated “that Thomas Martin be and he is hereby instructed from this date to execute all [482] orders of the board of road commissioners in relation to streets and highways of the city, and all orders of said hoard made within the provisions of the charter and ordinances of the city, and all orders of said board in relation to hiring men and teams and the discharge of the same in behalf of the city, and all orders which may from time to time be incumbent upon said hoard to make, any vote or order heretofore passed by said board to the contrary notwithstanding; and all orders or votes inconsistent herewith are hereby annulled and rescinded.” The ordinance of the council requiring the board to appoint an inspector defines his powers and duties. The foregoing vote cannot of itself limit the power of the respondent as an inspector de facto; this he has by virtue of his election and acceptance in form under an ordinance which is not subject to repeal by a vote of the commissioners, and, even if in certain particulars he acts from time to time as their servant, the power of an officer de facto still resides in him, and he can at any time exercise it. He has not resigned it, nor has it been taken from him. It is quite unnecessary to determine, or even consider, the question whether the city in its corporate capacity can sue for this writ; for Eugene S. Wyman is a co-relator, alleging that ■he is a tax-payer in the city. As such he is interested in having the duties annexed to the several public offices recognised by the city charter performed by persons legally elected thereto, and is entitled upon this proceeding to a determination as to the right of the respondent to exercise the office •which he has assumed, although no other person now claims fit. Under the circumstances of this case the decision should .precede rather than follow the election of another to the place. The finding of facts, inadvertently we presume, omits to confirm the allegation that he is a tax-payer. We advise judgment for the relator Wyman, if, upon further hearing for that purpose had, the Superior Court shall find that allegation to be "true. In this opinion the .other judges concurred.