[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 344; Dec. Dig. 8 155.*]

2._MUNICIPAL CORPORATIONS (§ 181*)-POLICE DEPARTMENT-REMOVAL OF OFFICERS-CHARTER PROVISIONS.

It

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 pointment, rather than of a quasi judicia! naof removal, which is incident to executive apfrom 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 resort to other means of interpretation. McKay v. Fair Haven & W. R. Co., 75 Conn. 608, 611, 54 Atl. 923; Sutherland on Statutory Construction, § 367. As applicable to 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- suspend, remove, or reduce them in rank. It is the duty of the individual members of the board 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 secformation 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. 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 persons, and that the surviving husband or policemen and in violation of statute was a vio75 feet of a polling place in the presence of wife shall generally have the custody of the lation of his duty as a police commissioner tenddead 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 interference of a court of equity. After the death of her husband it appears that the relations between Edith M. and the plaintiff were of a hostile nature. No stone was erected to mark the grave of the deceased husband, although the body had been interred for two years in the burial lot of his mother. Under the circumstances then existing the widow preferred to have her husband's remains interred in a burial lot under her own control. After obtaining the necessary statutory permit, she caused their removal to her own burial lot, where she has the right to be interred by the side of her husband. Under such conditions there was nothing unnatural or unreasonable in the action of the widow.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 461; Dec. Dig. § 181.*]

3. MUNICIPAL CORPORATIONS (§ 181*)-POLICE DEPARTMENT-REMOVAL OF POLICE COMMIS

SIONER.

The fact that the commissioner might have been proceeded against under sections 139 and 140 of the charter to establish a crime on his part or his liability to a forfeiture of his office did not prevent the mayor from removing him under sections 12 and 213, as section 143 provides that nothing in the four preceding sections shall limit or change any of the powers or duties concerning the removal of officers from office as defined in other provisions of the charter.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 461; Dec. Dig. § 181.*]

4. MUNICIPAL CORPORATIONS (§ 159*)—OFFI

CERS-REMOVAL-RIGHT TO HEARING.

There is no constitutional guaranty that a hearing in a proceeding to remove an appointive city officer shall be had before an impartial jury or other impartial judicial tribunal, and the limitation placed upon a mayor's executive power of removal as incident to the power of appointment that he shall afford a full hearing is satisfied if the mayor states to the officer the cause which induces him to contemplate the removal, being a proper cause, and gives him an opportunity to be heard in relation thereto, and assigns that cause for making the removal. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 350; Dec. Dig. S 159.*]

New Haven City Charter, §§ 12, 213, giving the mayor power to remove from office any person appointed by him or by his predecessor, if, after a full hearing, he shall find that the officer is incompetent or unfaithful, or that the

5. APPEAL AND ERROR (§ 1095*) — REVIEW FINDINGS CONCLUSIVENESS.

A finding of the superior court on appeal from an order of a mayor removing a police commissioner that the officer was given a full, fair, and impartial hearing would be conclusive upon the officer on appeal to the Supreme Court of Errors upon the question of fact whether the mayor acted unfairly and arbitrarily, if the question were open to him in the superior court. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4322; Dec. Dig. § 1095.*] 6. MUNICIPAL CORPORATIONS ($ 159*)-OFFICERS-REMOVAL-HEARING-APPEAL PUR

POSE.

-

A hearing given an appointive city officer by a mayor contemplating his removal, not being a trial, but merely a hearing precedent to his executive action, an appeal therefrom to the superior court does not transfer the proceeding to that court for a rehearing on the facts, the decision of the mayor thereon being final, but the purpose of the appeal is only to provide a summary process by which the court may revoke the order of removal, if any essential formality has been omitted, or perhaps if the executive power has been exercised so arbitrarily as to defeat the real purpose of the law in modifying an absolute discretion in removal.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 356; Dec. Dig. 159.*]

7. MUNICIPAL CORPORATIONS (§ 156*)-OFFICERS-REMOVAL-POLITICAL MOTIVE.

A mayor having removed a city officer for proper and sufficient cause, that the motive for the removal was political is immaterial.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 346; Dec. Dig. § 156.*]

Appeal from Superior Court, New Haven County; Joel H. Reed, Judge.

Application in the nature of an appeal by Jeremiah J. Sullivan from an order of James B. Martin, mayor of the city of New Haven, removing applicant from the office of police commissioner. There was a judgment affirming the order of the mayor, and applicant appeals. No error.

Richard H. Tyner and Howard C. Webb, for appellant. Edward H. Rogers and Edward P. O'Meara, for appellee.

this finding upon the fact that the plaintif while commissioner, in the presence of certain policemen, at an election held within the city, had peddled and offered ballots to voters within 75 feet of a polling place, thus violating the statutes of the state, and had thus demoralized the efficiency of the police department and its officers, and hindered said officers 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 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.

In Avery v. Studley, 74 Conn. 272, 282, 50 Atl. 752, we held that sections 12 and 213 of the New Haven charter provide a mode for exercising a power of removal incident to executive appointment, rather than one of a quasi-judicial nature to hear and determine official offenses punishable by forfeiture of office. The plaintiff's fundamental error is in his assumption that the mayor in the present case was attempting to exercise the latter, and not the former, power. He assumes this probably because his conduct as established by the evidence was such as to render him liable to punishment under the statutes of the state, and perhaps to forfeiture of office in a proceeding under sections 139 and 140 of the charter. But his conduct on that occasion was proven to show his incompetency and unfaithfulness in the office of commissioner, and not for the purpose of establishing a crime or his liability to a forfeiture of his office under sections 139 and 140. It appears from the finding and the charter and ordinances therein referred to that it is the duty of the depart

good order, and security of the city. The board of police commissioners designate the officers and policemen of the department, and make all promotions of officers and members of the force, and have the ultimate power of suspending, removing, or reducing them in rank. They fix the pay of all members of the department except the superin

THAYER, J. New Haven has a "department of police service to preserve the peace, ment 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 (sections 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 re-tendent. It is the duty of the individual quirements of the public service demand his removal." 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 ground that he was incompetent and unfaithful, and that the requirements of the public service demanded his removal, basing

members of the board to inform themselves of the fidelity and efficiency of every member of the force, and to report to the board in session any information which they may receive regarding the conduct of any officer, and to encourage and sustain every police officer in the faithful discharge of his duty. The board has the designation and selection 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 ap

pointee for the causes named in section 12, and repeated in section 213, although for similar causes he could be removed from the office by proceedings under the provisions of sections 139 and 140. This is what he did, and under the decision of Avery v. Studley, supra, he had jurisdiction to do so, and was not acting in a judicial or quasijudicial capacity in doing it..

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

peace, enforce good order, and prevent persons who are not voting or waiting their turn to vote or engaged in conducting the election from congregating within 100 feet of the polling place. The department of police service and its police officers are thus under the control of and are subservient to the board of police commissioners. It being thus the individual duty of the plaintiff to 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 in the face of one of his subordinates stationed there to preserve the peace and good order, and prevent those who had no lawful occasion to be there from congregating with in the prohibited space about the polls, tend-given for his contemplated removal. The ed directly to demoralize the efficiency of the police department and its officers, instead of encouraging them in the performance of their duty, and was a violation of his duty as a police commissioner, and indicated his incompetency and unfaithfulness in his office, and that the requirements of the public service might demand his removal. The case, therefore, comes clearly within the provisions of sections 12 and 213, and the mayor was acting within his jurisdiction, unless as the plaintiff claims there is something in the provisions of section 139 of the charter which in some way curtails that jurisdiction.

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 for making the removal." State ex rel. Williams v. Kennelly, 75 Conn. 704, 707, 708, 55 Atl. 555, 557; Pierce's Appeal, 78 Conn. 666, 669, 63 Atl. 161; Avery v. Studley, supra. There is no constitutional guaranty that such a hearing shall be had before an impartial jury or other impartial judicial tribunal.

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

It may be, but it is not necessary to here 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 sections 139 and 140 of the charter. A proceeding under those sections is to be instituted by not less than 20 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 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 sections shall be construed to limit or change any of the powers or duties concerning the removal of officers and employés from office as defined in other provisions of the charter. Quite likely it was intended by sections 139 and 142 that, should the mayor refuse upon proper request to remove an incompetent and unfaithful appointee, such removal may 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

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, supra, 283; Pierce's Appeal, 78 Conn. 669, 63 Atl. 161. 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

on this subject correctly and as fully as the state of the evidence and appropriate claims of the parties required.

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 of it when the accident happened. The record discloses that the defendant appeared and contested the case upon its merits. It offered no evidence, made no motion for a nonsuit for failure to make out a prima facie case, but waited until the argument to the jury was reached before claiming that there was no evidence showing that the driver of the truck was its agent or employé. This claim, under proper instructions, was submitted to the jury as a question of fact, and a verdict returned against the Smedley Company. Had it deemed that the evidence was insufficient to establish this fact, it should have taken some proper course to bring before this court the entire evidence bearing upon this subject. Without such evidence we cannot review the question which this company attempts to raise by the first as-is, that degree of care which the reasonably signment of error.

The second reason of appeal is that the judge erred in its charge as to withholding testimony. The court in discussing this proposition correctly stated the presumption applicable to a claim of this nature when it said: "It is a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other side to have contradicted; and the holding back of evidence by him is a presumption of fact against the party who withholds such evidence in a case where it could be produced." State v. Hogan, 67 Conn. 581, 584, 35 Atl. 508; Throckmorton v. Chapman, 65 Conn. 441, 454, 32 Atl. 930. Upon this subject it was, in substance, further stated: Now, of course, that depends upon the finding of the jury whether there was any holding back, and you must in passing upon that consider the argument upon the part of the defendant that it was not within their province at this time to produce that witness. There is nothing in that portion of the charge of which the defendant can justly complain.

The defendant objects, in its fourth assignment of error, because the court failed to charge in conformity with the following request: "The mere fact that the truck may have had upon it the name of Smedley is not sufficient; and unless it has been shown affirmatively by competent evidence that the driver of the truck was the servant or agent of the Smedley Company, and then and there acting as such, so far as the Smedley Company is concerned, your verdict must be for the defendant." Ordinarily, it is not incumbent upon the trial court, in charging the jury, to call their attention to specific portions of the evidence as supporting or

Paragraphs 5 to 9 and 11 to 13 of the reasons of appeal, relating to the charge as given or to requests refused, raised one general question; that is, whether under the facts of the case the court performed its duty in leaving the question of contributory negligence to the jury, to be determined by them as a question of fact upon the evidence. As already stated, the plaintiff's injuries were received while he was riding on the running board of the defendant railway company's car. The court correctly stated the law upon the question of the plaintiff's negligence when, in substance, it said: Now, what was the duty of the plaintiff? It was his duty also to use reasonable care; that

prudent person would use under the same circumstances. It was care in proportion to the danger, and, as you know, greater care is required under the rule in dangerous situations than in situations that do not furnish such elements of danger. The law cannot say that, because the man was standing on the running board of the car, under all circumstances that would be contributory negligence. That is a question of fact for the jury to determine in a given case. It is obvious that standing on a running board of a car is more dangerous than when seated in the car. Hence, while the standard of due care remains the same, what will be due care will be more in the one case, in the dangerous situation, than in the other. A greater degree of care must be exercised from one in such a position to avoid injury to himself and to avoid injury from teams or other vehicles in close proximity to the car upon which he stands. It appears that the testimony and claims of counsel were conflicting in regard to the speed, location, and control of the truck when the accident happened. These and other important facts upon the trial were in dispute. This court has not the evidence of the circumstances surround. ing the accident. We have not the means of determining whether the court below erred upon this subject, unless we are prepared to hold that a person standing upon the running board of a trolley car would, under all circumstances, be guilty of contributory neg ligence. Such a propostion would manifestly be unsound.

There was conflicting evidence whether the car had passed the truck, or the truck was in advance of the car, when the accident happened. The court, in closing its remarks upon the assumption that the car had passed