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In the construction of statutes, the intent requirements of the public service demand his is to be sought first of all in the words and removal, provide a mode for exercising a power language employed, and if the words are free of removal, which is incident to executive ap

pointment, rather than of a quasi judicial nafrom ambiguity and doubt, and clearly and ture to hear and determine official offenses pundistinctly express the sense of the legislative ishable by forfeiture of office. body passing the act, there is no occasion to [Ed. Note.-For other cases, see Municipal resort to other means of interpretation. MC- Corporations, Cent. Dig. & 344; Dec. Dig. 8

155.*] Kay v. Fair Haven & W. R. Co., 75 Conn. 608, 611, 54 Atl. 923; Sutherland on Statu- 2. MUNICIPAL CORPORATIONS (§ 181*)—POLICE tory Construction, . 8 367. As applicable to


TER PROVISIONS. husband and wife, the object and intent of

The office of a city board of police comthe statute under consideration are obvious, missioners is to designate the officers and policeplain, and unequivocal. They are expressly men of the police department, make promotions, declared in the first portion of the act al- the duty of the individual members of the board

suspend, remove, or reduce them in rank. It is ready cited, and every portion of this enact- to inform themselves of the fidelity and efficienment relates to the object and purpose ex. cy of members of the force, and report any inpressed in the opening paragraph. The sec- formation to the board. The board designates ond clause points out that relative entitled is the duty of the police department to preserve

the location of polling places at elections. It to custody and control in cases of abandon- the peace, good order, and security of the city, ment when the husband and wife are dead. and the duty of the chief of the department to The closing provision gives the court of pro-enforce good order, and prevent persons not

make and enforce rules to preserve the peace, bate power to act when there is a controver. rightfully there from congregating within 100 sy between the next of kin as to the suitabili- feet of the polling place; the department of ty of the person in whom this statutory right police service being under the control of and is reposed. From the entire act it is appar- Held, that the act of a member of the police

subservient to the board of police commissioners. ent that its purpose is to avoid unseemly commission at an election held in the city in controversies over the remains of deceased peddling and offering ballots to voters within

75 feet of a polling place in the presence of persons, and that the surviving husband or wife shall generally have the custody of the lation of his duty as a police commissioner tend

policemen and in violation of statute was a viodead body for the purposes of burial, and the ing to impair the efficiency of the department, control of the remains after interment. This and indicated his incompetency and unfaithfulright is not absolute, or the judgment of the office by the mayor under

New Haven Charter,

ness in his office, so that he was removable from person in whom it is reposed conclusive.

$$ 12, 213, empowering the mayor to remove In the present case from the facts disclosed from office any person appointed by him or his it does not appear that the widow has so ex- predecessor for incompetence, unfaithfulness, etc. ercised her right as to call for the interfer

[Fd. Note. For other cases, see Municipal ence of a court of equity. After the death of Corporations, Cent. Dig. $ 461; Dec. Dig. 8

181.*] her husband it appears that the relations be

3. MUNICIPAL CORPORATIONS ($ 181*)-POLICE tween Edith M. and the plaintiff were of

DEPARTMENT-REMOVAL OF POLICE COMMIShostile nature. No stone was erected to mark the grave of the deceased husband, al- The fact that the commissioner might have though the body had been interred for two been proceeded against under sections 139 and years in the burial lot of his mother. Under part or his liability to a forfeiture of his of

140 of the charter to establish a crime on his the circumstances then existing the widow fice did not prevent the mayor from removing preferred to have her husband's remains in him under sections 12 and 213, as section 143 terred in a burial lot under her own control. provides that nothing in the four preceding sec

tions shall limit or change any of the powers or After obtaining the necessary statutory per- duties concerning the removal of officers from mit, she caused their removal to her own office as defined in other provisions of the burial lot, where she has the right to be in-charter. terred by the side of her husband. Under [Ed. Note. For other cases, see Municipal such conditions there was nothing unnatural Corporations, Cent. Dig. § 461; Dec. Dig. 8

181.*] or unreasonable in the action of the widow. There is no error. The other Judges con- | 4. MUNICIPAL CORPORATIONS ($ 159*)-OFFI


There is no constitutional guaranty that a hearing in a proceeding to remove an appointive

city officer shall be had before an impartial jury (81 Conn. 585)

or other impartial judicial tribunal, and the SULLIVAN v. MARTIN, Mayor. limitation placed upon a mayor's executive pow

er of removal as incident to the power of ap (Supreme Court of Errors of Connecticut. Jan. pointment that he shall afford a full hearing is 27, 1903.)

satisfied if the mayor states to the officer the 1. MUNICIPAL CORPORATIONS (8 155*)_OFFI- cause which induces him to contemplate the CERS-REMOVAL.

removal, being a proper cause, and gives him New Haven City Charter, &$ 12, 213, giv- an opportunity to be heard in relation thereto, ing the mayor power to remove from office any and assigns that cause for making the removal. person appointed by him or by his predecessor, (Ed. Note.--For other cases, see Municipal if, after a full hearing, he shall find that the Corporations, Cent. Dig. $ 350; Dec. Dig. $ officer is incompetent or unfaithful, or that the '159.*]



5. APPEAL AND ERROR (8 1095*) — REVIEW this finding upon the fact that the plaintif FINDINGS-CONCLUSIVENESS.

wbile commissioner, in the presence of cerA finding of the superior court on appeal from an order of a mayor removing a police tain policemen, at an election held within commissioner that the officer was given a full, the city, had peddled and offered ballots to fair, and impartial hearing would be conclusive | voters within 75 feet of a polling place, upon the officer on appeal to the Supreme Court thus violating the statutes of the state, and of Errors upon the question of fact whether the mayor acted unfairly and arbitrarily, if the had thus demoralized the efficiency of the question were open to him in the superior court. police department and its officers, and bin

[Ed. Note. For other cases, see Appeal and dered said officers in the performance of Error, Cent. Dig. $ 4322; Dec. Dig. § 1095.*]

their duties. The plaintiff in the superior 6. MUNICIPAL CORPORATIONS ($ 159*)-OFFI- court to which he appealed from the order CERS-REMOVAL-HEARING-APPEAL · PUR

of the mayor and in this court to which he A hearing given an appointive city officer appealed from the judgment of the superior by a mayor contemplating his removal, not be court has assumed that the cause of his reing a trial, but merely a hearing precedent to moval was his offense against the laws of his executive action, an appeal therefrom to the superior court does not transfer the proceeding the state, and has insisted that the mayor to that court for a rehearing on the facts, the had no jurisdiction to find him guilty of decision of the mayor thereon being final. but such an offense, and that, if he bad such juthe purpose of the appeal is only to provide a risdiction, he was acting in a judicial or summary process by which the court may revoke the order of removal, if any essential for quasi-judicial capacity while conducting the mality has been omitted, or perhaps if the ex- hearing and committed errors therein which ecutive power has been exercised so arbitrarily rendered his finding and order illegal. as to defeat the real purpose of the law in modifying an absolute discretion in removal.

In Avery v. Studley, 74 Conn. 272, 282, 50 [Ed. Note. For other cases, see Municipal Atl. 752, we held that sections 12 and 213 of Corporations, Cent. Dig. § 356; Dec. Dig: š the New Haven charter provide a mode for 159.*]

exercising a power of removal incident to 7. MUNICIPAL CORPORATIONS ($ 156*)_OFFI-executive appointment, rather than one of a CERS-REMOVAL-POLITICAL MOTIVE.

quasi-judicial nature to hear and determine A mayor having removed a city officer for Official offenses punishable by forfeiture of proper and sufficient cause, that the motive for the removal was political is immaterial.

office. The plaintiff's fundamental error is [Ed. Note. For other cases, see Municipal | in his assumption that the mayor in the Corporations, Cent. Dig. $ 346; Dec. Dig. 8 present case was attempting to exercise the 156.*]

latter, and not the former, power. He asAppeal from Superior Court, New Haven sumes this probably because his conduct as County; Joel H. Reed, Judge.

established by the evidence was such as to Application in the nature of an appeal by render him liable to punishment under the Jeremiah J. Sullivan from an order of James statutes of the state, and perhaps to for. B. Martin, mayor of the city of New Haven, feiture of office in a proceeding under secremoving applicant from the office of police tions 139 and 140 of the charter. But his commissioner. There was a judgment af- conduct on that occasion was proven to firming the order of the mayor, and appli- show his incompetency and unfaithfulness cant appeals. No error.

in the office of commissioner, and not for the

purpose of establishing a crime or his liaRichard H. Tyner and Howard C. Webb, bility to a forfeiture of his office under secfor appellant. Edward H. Rogers and Ed- tions 139 and 140. It appears from the findward P. O'Meara, for appellee.

ing and the charter and ordinances therein

referred to that it is the duty of the departTHAYER, J. New Haven has a "department of police service to preserve the peace, ment of police service” which is under the good order, and security of the city. The management and control of a board of six board of police commissioners designate the police commissioners who are appointed by officers and policemen of the department, the mayor. The city charter (sections 12 and make all promotions of officers and and 213) gives the mayor power to remove members of the force, and have the ultimate from office any person appointed by him or power of suspending, removing, or reducing by any of his predecessors “if, after a full them in rank. They fix the pay of all memhearing, he shall find that such officer is in-bers of the department except the superin. competent, or unfaithful, or that the re- tendent. It is the duty of the individual quirements of the public service demand his members of the board to inform themselves removal.” The defendant as mayor of the of the fidelity and efficiency of every memcity, having first duly summoned the plaintiff ber of the force, and to report to the board to show cause why he should not be re in session any information which they may moved, after a full hearing, removed him receive regarding the conduct of any officer, from the office of police commissioner upon and to encourage and sustain every police the ground that he was incompetent and un- officer in the faithful discharge of his duty. faithful, and that the requirements of the The board has the designation and selection public service demanded his removal, basing of every polling place at all elections. It is the duty of the chief of the department to a proper case as incident to the power of make and enforce rules to preserve the appointment proceed to remove such an appeace, enforce good order, and prevent per- pointee for the causes named in section 12, sons who are not voting or waiting their and repeated in section 213, although for turn to vote or engaged in conducting the similar causes he could be removed from election from congregating within 100 feet the office by proceedings under the proviof the polling place. The department of sions of sections 139 and 140. This is what police service and its police officers are thus he did, and under the decision of Avery v. under the control of and are subservient to Studley, supra, he had jurisdiction to do so, the board of police commissioners. It being and was not acting in a judicial, or quasithus the individual duty of the plaintiff to judicial capacity in doing it.. inform himself of the efficiency of every Several of the plaintiff's reasons of appeal member of the force and to encourage and assign as their ground the unconstitutionalsustain every police officer in the faithful ity of section 213 of the city charter, in that performance of his duty, he failed in that it does not provide an impartial judicial duty, and his conduct at the voting place tribunal for the trial of the charges. The in the face of one of his subordinates station- hearing before the mayor in such a proceeded there to preserve the peace and good or- | ing is not a trial. It is a hearing given in der, and prevent those who had no lawful the appointee's interest to enable him to be occasion to be there from congregating with heard as to the sufficiency of the causes in the prohibited space about the polls, tend- given for his contemplated removal. The ed directly to demoralize the efficiency of limitation placed by the charter upon the the police department and its officers, instead executive power of removal as incident to of encouraging them in the performance of the power of appointment “is satisfied when their duty, and was a violation of his duty the mayor has stated to the officer the cause as a police commissioner, and indicated his which induces him to contemplate his reincompetency and unfaithfulness in his of- moval, being a proper and sufficient cause, fice, and that the requirements of the public and has given him an opportunity to be service might demand his removal. The heard in relation thereto, and assigns this case, therefore, comes clearly within the cause for making the removal.” State ex provisions of sections 12 and 213, and the rel. Williams v. Kennelly, 75 Conn. 704, 707, mayor was acting within his jurisdiction, 708, 55 Atl. 555, 557; Pierce's Appeal, 78 unless as the plaintiff claims there is some-Conn. 666, 669, 63 Atl. 161; Avery v. Studley, thing in the provisions of section 139 of the supra. There is no constitutional guaranty charter which in some way curtails that ju- that such a hearing shall be had before an risdiction.

impartial jury or other impartial judicial It may be, but it is not necessary to here tribunal. decide the point, that the plaintiff on proof The question whether the mayor acted unof the facts which were proven to the sat- fairly, unjustly and arbitrarily, which is atisfaction of the mayor in this case would tempted to be raised by several of the reabe liable to a forfeiture of his office in a sons of appeal, is a question of fact, and, if proceeding under sections 139 and 140 of the open to the plaintiff in the superior court, charter. A proceeding under those sections has been answered by the court's finding is to be instituted by not less than 20 free that the plaintiff was given a full, fair, and holders of the city by a complaint to the impartial hearing. The proceeding before superior court, and, if successful, may re- the mayor not being a trial, but merely a sult, not only in the forfeiture of his office hearing precedent to his executive action by the person proceeded against, but a judg- relative to the plaintiff's removal, the appeal ment disqualifying him for any city office therefrom to the superior court did not transfor the period of five years. Some of the fer the proceeding to that court for a reheargrounds for the proceeding are such as if ing of the facts. The purpose of the appeal proved in a proceeding under section 12 be- is to provide a summary process by which fore the mayor would warrant him in find the court may revoke the order of removal ing the officer charged incompetent and un- in case any essential formality has been fit for his office; but section 143 provides omitted, or, perhaps, in case it finds that that nothing contained in the four preceding the executive power has been exercised so sections shall be construed to limit or change arbitrarily as to defeat the real purpose of any of the powers or duties concerning the the law in modifying an absolute discretion removal of officers and employés from of- in removal. Avery v. Studley, supra, 283 ; fice as defined in other provisions of the Pierce's Appeal, 78 Conn, 669, 63 Atl. 161. charter. Quite likely it was intended by Numerous exceptions were taken to the sections 139 and 142 that, should the mayor court's exclusion of evidence offered by the refuse upon proper request to remove an in- plaintiff to prove the nonexistence of the competent and unfaithful appointee, such re- cause assigned for his removal by the maymoval may be effected by a proceeding, less or and to prove that the defendant was acsummary, but more far-reaching, in the su- tuated by political reasons in making the perior court upon the complaint of the free- removal. So far as the evidence was offered holders of the city. But the mayor may in for the purpose of retrying questions of fact


which had been determined by the mayor, y truck owner because it alleged that the street it was properly rejected because the deci-car was running at a dangerous rate of speed sion of those questions by him was final. allegation being essential to show that the neg

and negligently managed by the motorman; such Avery v. Studley, supra. The evidence to ligence of the servants of both defendants jointprove political motive was also immaterial. ly caused the injury. State ex rel. Williams v. Kennelly, 75 Conn. [Ed. Note.-For other cases, see Negligence, 709, 55 Atl. 555.

Dec. Dig. § 108.*] There is no error.

Appeal from Superior Court, New Haven

County; George W. Wheeler, Judge. (81 Conn. 556)

Action by Frank Tetreault against the TETREAULT v. SMEDLEY CO. et al.

Smedley Company and the Connecticut Com(Supreme Court of Errors of Connecticut. Jan. pany for injuries to plaintiff while riding on 22, 1909.)

the running board of a street car by the 1. TRIAL ($ 204*)-INSTRUCTIONS_REFERENCE driving of a truck against him. Plaintiff TO EVIDENCE.

recovered a judgment for $1,800 against the It is not necessary for the court to state in Smedley Company alone, from which it apits charge all the evidence bearing on a particular question.

peals. Affirmed. [Ed. Note.--For other cases, see Trial, Cent. Levi N. Blydenburgh, for appellant SmedDig. § 495; Dec. Dig. 8 204.*)

ley Co. Harry G. Day and Thomas M. Steele, 2. APPEAL AND ERROR (8 695*)-RECORD-RE- for appellee Connecticut Co. Walter J. VIEW-EVIDENCE. Where defendant did not bring up the en

Walsh, for other appellee. tire evidence on appeal bearing on the question whether the driver of a truck by which plaintiff RORABACK, J. The plaintiff was a paswas injured was its employé, an objection that senger on an open car of the defendant railthere was no evidence sufficient to submit such question to the jury could not be reviewed.

way company. On account of the car being [Ed. Note. For other cases, see Appeal and crowded, he was obliged to stand on the Error, Cent. Dig. $82911–2913; Dec. Dig. 8 right-hand, or outside, running board, and 695.*]

assumed a postion near the front end, with 3. EVIDENCE (8 75*) WITHHOLDING EVI. his right foot on the running board about DENCE-PRESUMPTION.

one foot from the end, with his left foot All evidence is to be weighed according to the proof which it is in the power of one side to upon the platform, between the front dashproduce and in the other side to contradict; board and the first seat back of the motorthe holding back of evidence being sufficient to

While standing in this position, a furraise a presumption of fact against the party niture truck collided with the car in such a withholding it. [Ed. Note.-For other cases, see Evidence,

manner that the rear hub of the wheel of Cent. Dig. $ 95; Dec. Dig. § 75.*]

the truck came in contact with the plaintiff's 4. TRIAL ($ 244*) - INSTRUCTIONS - SPECIFIC right foot, causing the injuries complained PORTIONS OF EVIDENCE.

of. The parties were at issue upon the alWhere plaintiff was injured by being struck leged negligence of the two companies, the by a truck alleged to have been negligently driven by defendant's servant, a request that the exercise of due care upon the part of the fact that the truck may have had defendant's plaintiff, and the ownership and control of name on it was not sufficient to show that it the furniture truck. was being driven by defendant's servant, and that, unless that fact was affirmatively proved,

The jury found the issues as against the defendant was not liable, was properly refused, Smedley Company and for the railway comunder the rule that the court need not call the pany. The Smedley Company claimed that jury's attention to specific portions of the evi- there was no evidence in the case proving dence as supporting or refusing a claim; it being sufficient if they are instructed to take into that the driver of the truck was its agent account all of the evidence bearing on disputed or employé, or that this truck was then and points in the case.

there owned or used by the company, or its [Ed. Note.- For other cases, see Trial, Cent. agents or employés. In this connection this Dig. 88 577–581; Dec. Dig. § 244.*]

defendant complains of the court's instruc5. MUNICIPAL CORPORATIONS ($ 706*)—STREET tions for the following reasons: "The court


erred and mistook the law in charging the TION FOR JURY.

jury that on the evidence as stated in the Where a passenger on a street car was charge it was not a matter of law for the struck by the hub of a passing truck, he was not negligent as a matter of law, a's to the court to determine whether or not the truck owner of the truck, because he was riding with was the truck of the Smedley Company, and his right foot on the running board of the car operated and controlled by it at the time of with his left foot on the platform.

the accident, and that it was entirely a ques[Ed. Note. For other cases, see Municipal tion of fact for the jury.” It was not necCorporations, Dec. Dig. $ 700.*] 6. NEGLIGENCE (8 108*)-JOINT WRONGDOERS

essary for the court, nor does it appear that --COMPLAINT,

it attempted, to state in its charge all the Where plaintiff, while riding on the run- evidence bearing upon this question. The ning board of a street car, was struck by the record discloses that the court, after calling hub of a passing truck, and both the street car company and the owner of the truck were sued, the attention of the jury to the claims of the the complaint was not demurrable as to the parties and the evidence of several witnesses who had testified upon this branch of the instructed to take into account all the evicase, said, in substance: Now from that dence bearing upon disputed points in the evidence and other evidence in the case case. Hart v. Knapp, 76 Conn. 135, 137, 55 which I have not cited upon that point, you Atl, 1021, 100 Am. St. Rep. 989. As hereinare to determine as a question of fact wheth- before stated in connection with the first reaer this truck belonged to the Smedley Com- son of appeal, the court charged the jury uppany and whether their driver was in charge on this subject correctly and as fully as the of it when the accident happened. The rec- state of the evidence and appropriate claims ord discloses that the defendant appeared of the parties required. and contested the case upon its merits. It Paragraphs 5 to 9 and 11 to 13 of the reaoffered no evidence, made no motion for a sons of appeal, relating to the charge as nonsuit for failure to make out a prima facie given or to requests refused, raised one gencase, but waited until the argument to the eral question; that is, whether under the jury was reached before claiming that there facts of the case the court performed its was no evidence showing that the driver of duty in leaving the question of contributory the truck was its agent or employé. This negligence to the jury, to be determined by claim, under proper instructions, was sub-them as a question of fact upon the evimitted to the jury as a question of fact, and dence. As already stated, the plaintiff's ina verdict returned against the Smedley Com-juries were received while he was riding on pany. Had it deemed that the evidence was the running board of the defendant railway insuficient to establish this fact, it should company's car. The court correctly stated have taken some proper course to bring be the law upon the question of the plaintiff's fore this court the entire evidence bearing negligence when, in substance, it said: Now, upon this subject. Without such evidence what was the duty of the plaintiff? It was we cannot review the question which this his duty also to use reasonable care; that company attempts to raise by the first as- is, that degree of care which the reasonably signment of error.

prudent person would use under the same The second reason of appeal is that the circumstances. It was care in proportion to judge erred in its charge as to withholding the danger, and, as you know, greater care testimony. The court in discussing this prop-is required under the rule in dangerous sitosition correctly stated the presumption ap- uations than in situations that do not furplicable to a claim of this nature when it nish such elements of danger. The law can. said: “It is a maxim that all evidence is to not say that, because the man was standing be weighed according to the proof which it on the running board of the car, under all was in the power of one side to have produc- circumstances that would be contributory ed, and in the power of the other side to negligence. That is a question of fact for have contradicted; and the holding back of the jury to determine in a given case. It is evidence by him is a presumption of fact obvious that standing on a running board of against the party who withholds such evi- a car is more dangerous than when seated in dence in a case where it could be produced.” the car. Hence, while the standard of due State v. Hogan, 67 Conn. 581, 584, 35 Atl. care remains the same, what will be due 508; Throckmorton v. Chapman, 65 Conn. care will be more in the one case, in the dan441, 454, 32 Atl. 930. Upon this subject it gerous situation, than in the other. A greatwas, in substance, further stated: Now, of er degree of care must be exercised from one course, that depends upon the finding of the in such a position to avoid injury to himself jury whether there was any holding back, and to avoid injury from teams or other veand you must in passing upon that consider hicles in close proximity to the car upon the argument upon the part of the defendant which he stands. . It appears that the testi. that it was not within their province at this mony and claims of counsel were conflicting time to produce that witness. There is noth- in regard to the speed, location, and control ing in that portion of the charge of which the of the truck when the accident happened. defendant can justly complain.

These and other important facts upon the The defendant objects, in its fourth assign- trial were in dispute. This court has not ment of error, because the court failed to the evidence of the circumstances surround. charge in conformity with the following reing the accident. We have not the means quest: "The mere fact that the truck may of determining whether the court below errhave had upon it the name of Smedley is ed upon this subject, unless we are prepared not sufficient; and unless it has been shown to hold that a person standing upon the runaffirmatively by competent evidence that the ning board of a trolley car would, under all driver of the truck was the servant or agent circumstances, be guilty of contributory nego of the Smedley Company, and then and ligence. Such a propostion would manifestthere acting as such, so far as the Smedley ly be unsound. Company is concerned, your verdict must There was conflicting evidence whether be for the defendant.” Ordinarily, it is not the car had passed the truck, or the truck incumbent upon the trial court, in charging was in advance of the car, when the accident the jury, to call their attention to specific happened. The court, in closing its remarks portions of the evidence as supporting or upon the assumption that the car had passed

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