State ex rel. Reiley v. Chatfield

Andrews, C. J. The defendent in his answer has set forth the warrant by which he claims to have and exercise the office of superintendent of streets in the city of Waterbury. He shows an election to that office on the 5th day of January, 1898, which on its face appears to be a good one, and to be a sufficient warrant for him to have and enjoy that office. In quo warranto proceedings the burden is on the party defendant to show a complete title to the office in dispute, otherwise judgment of ouster must be rendered against him. In this case the relator claims to be the rightful occupant of the said office. His title is set forth in the application. He shows an election to the office of superintendent of streets of Waterbary on the 16th day of December, 1897, for the term of three years; and so he insists that he was the incumbent of the office at the time the defendant claims to have been elected, and that therefore the defendant’s election was void. The contention is, then, which election shall prevail. [111] A new charter for the city of Waterbury went into effect on the first Monday of January, 1896. The relator at that time held the office of inspector of streets, by an appointment made on the 3d day of March, 1894. The charter then in force provided that the inspector of streets should hold office for a term not exceeding three years. The new charter repealed “ all acts and parts of acts relating to the city of Waterbury,” except those “relating to the Bronson Library” and those passed at the session of 1895. But a section (138) of the new charter enacted that the inspector of streets should hold office until the expiration of the term for which he was appointed, and until his successor should be appointed under the provisions of this act. The relator, therefore, continued to hold office until the 3d day of March, 1897. By the new charter the scheme of city government was largely changed and in various particulars; notably in the matter of streets. Under the former charter there was a board of road commissioners, which appointed a street inspector. Under the new charter there was no such board. The city government was divided into departments. There was a department of public works, and sundry other departments. There was also created a board of commissioners of public works, consisting of the mayor, who was ex officio chairman of the board, and five electors, by him appointed to hold office for two years. The department of public works was subdivided into bureaus, one of which was the bureau of streets, the head of which was called the superintendent of streets. This bureau had, under the direction of the board of public works, the general duty of opening and the care of all streets. This board appointed all its officers, and so had authority to appoint, as it did, a superintendent of streets. The new charter did not fix any term during which the superintendent should hold office. The election of the relator was lawful at the time it was made, and was confessedly a good title to the office so long as the board which elected him remained in office, or until he was removed, and until some other person was elected in his stead. The board which elected him went out [112] of office on the first Monday of January, 1898. On that day a new mayor came into office and a new hoard. The new board elected the defendant to the office of superintendent of streets, and removed the relator from that office. It is the common rule that where the power of appointment is conferred in general terms without restriction, the power of removal at discretion and at the will of the appointing power is implied, and always exists unless restricted and limited by some other provision of law. People v. Robb, 126 N. Y. 180, 182; Fairfield County Bar v. Taylor, 60 Conn. 11, 12; People v. Fire Commissioners, 78 N. Y. 437; Fx parte Hennen, 13 Pet. 230 ; Blake v. United States, 103 U. S. 227; Parsons v. United States, 167 id. 324. The relator does not controvert this rule. But he says that the power of the board of public works to appoint a superintendent of streets was restricted and limited by that part of the old charter which provided that the inspector of streets should hold office for a term not exceeding three years; that that part of the old charter is not affected or repealed by anything in the new charter, but is still in force and applies to the superintendent of streets, who is, as the relator claims, the same officer by a changed name. This claim cannot be sustained. The provisions of the new charter forbid. It is true that this provision is not repealed by any express reference. But the general words of repeal in § 140 of the new charter are fully broad enough to repeal every provision of the old charter not expressly exempted. And were this otherwise, the provisions of the new charter respecting streets are so obviously designed to cover the whole ground, that they exclude everything inconsistent with them in the old charter. The term of office of the inspector of streets was certainly repealed. The new charter is in this respect a substitute for the old one, and so repeals it. Hartford v. Hartford Theological Seminary, 66 Conn. 475, 484; Cullen v. State, 42 id. 55 ; United States v. Tynen, 11 Wall. 88; United States v. Claflin, 97 U. S. 546. We think the relator was lawfully removed from, and that the defend [113] ant was lawfully elected to, the office of superintendent of streets. The Superior Court is advised to dismiss the application. In this opinion the other judges concurred.