State Ex Rel. Engelke v. Kilmartin , 86 Conn. 56 ( 1912 )

The relator and respondent are claimants for the office of health officer of the city of Waterbury. Each received his appointment from the same source, to wit, the board of commissioners of public health, acting pursuant to § 110 of the city charter. 12 Special Laws, p. 464. The relator was chosen January 10th, 1910; the respondent, by a changed membership, on January 6th, 1912. Neither questions the authority of the board to make appointments to the office as vacancies occur. Their contention relates solely to the term upon which, under the law, an appointee enters. The relator claims that it is one of four years; the respondent, one at the pleasure of the board. This disagreement results from the different views advanced as to what constitutes the governing law of the situation. The relator finds it in §§ 2531 and 2532 of the General Statutes; the respondent, in §§ 109 to 111 of the charter of the city.

The relator was, by the president of the board, declared elected for the term of four years. That declaration, however, could have no effect in creating a term different from that fixed by law. At the meeting of January 6th, 1912, and prior to the respondent's election thereat, it was voted that the relator be dismissed; such dismissal to take effect immediately. This summary dismissal, without cause, was equally ineffective to cut down his legal term. It would, on the other hand, be effective to terminate a tenure of office at the pleasure of the board, and under such conditions create a vacancy. State ex rel. Bergin v. Goodrich, post, 68,84 A. 99.

Chapter 145 of the Public Acts of 1895, p. 519, supplementing chapter 248 of the Public Acts of 1893, p. 399, applicable to towns only, provided for the appointment of a health officer, to hold office for four years, in all cities and boroughs in which no such officer was then appointed, and prescribed his duties and powers. The appointing power was designated. In cities it was the common council upon nomination by the mayor. This Act was approved May 23d 1895, and took effect August 1st, 1895. The present charter of the city of Waterbury, in its pertinent parts, was granted at the same session of the General Assembly, and approved June 22d. It provided for the appointment of a health officer by the board of commissioners of public health. The board, which must consist of five members, of whom one at least should be a practicing physician, was vested with all the powers of town health officer, entrusted with the duty of enforcing the health ordinances of the city, and empowered to make such by-laws, rules, regulations, and orders as the preservation of the public health should, in its judgment, require. It is quite apparent that it was intended that the board should be the responsible authority in all health matters, and that the health officer should be its appointee and agent. As the law thus stood, there can be no manner of doubt that it was the intention of the legislature that the governing law with respect to health matters in the city of Waterbury, and to the appointment of a health officer within that city, should be found in its charter utterance and not in the General Statutes.

This legislation was followed in 1897 by an Act which provided that the health officer of every city and borough should hold office for the term of four years from and after the date of his appointment. Public Acts of 1897, p. 955, Chap. 242. What, in view of the somewhat remarkable provisions of § 141 of the charter of the city of Waterbury, was the effect of this legislation in fixing the term of health officers in that city, we need not inquire. The form which the statutory regulation assumed in the Revision of 1902 renders it unnecessary to do so. Section 2531 dealt with the subject of the appointment of city and borough health officers. It prescribed the manner of such appointment, applicable to every city and borough "unless the charter of such city or borough otherwise provides for the appointment of a health officer." The following section (2532) established the term of office of "the health officer of every city or borough appointed under the provisions of § 2531" at four years. With respect to the manner of appointment, or term of office, of health officers in other cities or boroughs, the Revision remained silent. There has been no change of present pertinence in the law.

The relator urges that the form which the statutory regulation took in the Revision should not be regarded as effecting a change in the law, as the Act of 1897 left it, through the application of the familiar principles that revisers are presumed not to change the law, and that mere changes in words by them will not be deemed to accomplish changes in the law unless it appears that there was an intention to make such changes. Ross v.Crofutt, 84 Conn. 370, 80 A. 90; Campbell's Appeal,76 Conn. 284, 288, 56 A. 554. The intent to change the law must, indeed, be evident and certain. But in the present instance it is quite impossible not to discover it in the character and scope of the change which the Revision embodies. There is something more than a mere change of words or phrase. There is incorporated into the two sections involved the treatment of special subject-matter which the pre-existing law wholly ignored. This subject-matter is carefully defined and intelligently and consistently dealt with. It is difficult to account for the presence in the two sections of this subject-matter, or the kind of treatment it received, upon any other theory than that a change was intended, and one which should limit the application of the general law to those cities and boroughs for which there was no charter regulation, and leave the situation in cities and boroughs for which such regulation was provided to be controlled thereby.

We have, then, to look to the city charter for the governing law. We find that, while the appointing power is defined, the term of office is not. In such case, in the absence of some provision of law to the contrary or defining the mode of removal, the officer is regarded as holding at the will of the appointing power, on the theory that the power of removal is incident to that of appointment. Ex parte Hennen, 13 Pet. (U.S.) 230, 259; Fairfield County Bar v. Taylor, 60 Conn. 11, 12,22 A. 441; State ex rel. Reiley v. Chatfield, 71 Conn. 104,112, 40 A. 922; People ex rel. Corrigan v. Mayorof Brooklyn, 149 N.Y. 215, 223, 43 N.E. 554; Murphy v. Webster, 131 Mass. 482, 488.

As the term for which the relator was chosen was one at the pleasure of the board, it was, in the absence of legislation to the contrary, acting within its rights in dismissing him, and in appointing the respondent as his successor.

The Superior Court is advised to render judgment for the respondent.

In this opinion the other judges concurred.