State Ex Rel. White v. Mills , 99 Conn. 217 ( 1923 )

The Assistant State's Attorney had power to sign the writ "in the absence or disqualification of the State's Attorney," and until the contrary appears, we must presume that he acted in accordance with his statutory authority (§ 5480). Hellman v.Karp, 93 Conn. 317, 323, 105 A. 678; Atwater v.O'Reilly, 81 Conn. 367, 371, 71 A. 505; State v. Main,69 Conn. 123, 140, 37 A. 80.

By the charter of the city of Norwalk (16 Special Laws, p. 1055, § 55) the Council is authorized, "whenever any elective officer of said town or city . . . shall be convicted of malfeasance in office or of any infamous crime," to "declare such office vacant," and forthwith proceed to fill such vacancy.

It is urged that the word "convicted," as used in the charter, imports a "conviction" which is, in the language of Chief Justice Marshall in Ammidon v. Smith, 14 U.S. (1 Wheat.) 447, 461, "a technical term applicable to a judgment on a criminal prosecution"; and that the Council is not, by the charter of the City of Norwalk, constituted a court with jurisdiction to try, convict and sentence the relator for malfeasance in office. We quite agree that the Council is not a court, and that it has no jurisdiction to hear and determine a disputed issue of malfeasance in office. But the issue of jurisdiction is not presented by this record in that form. On the contrary, it appears from the alternative writ that the relator admitted the facts as charged, and claimed that he purchased the whiskey for his own use. It required no argumentative demonstration to establish the character of the relator's admitted conduct. By virtue of his office as a member of the Council, he was in a position to put great pressure upon the police sergeant, and he misused his office for the purpose of corrupting a subordinate official into assisting him to violate a law with whose enforcement that official was especially charged, and also committed an offense, or a series of offenses, punishable by fine and imprisonment. Incidentally the particular bootlegger involved might well have supposed himself protected, for the time being, in the pursuit of his unlawful trade. In effect the relator stood before the Council admitting that he had been guilty of malfeasance in office; and his claim that the Council had no jurisdiction to declare his office vacant, rests wholly upon the distinction between a prior conviction of malfeasance in office and a present admission of malfeasance in office. Manifestly, the underlying reason of public policy which actuated the General Assembly was to give the Council power to summarily dismiss from office any elective officer whose malfeasance in office had been conclusively established, and the limitation to act until after a prior conviction, was for the protection of the person charged. So far as the language of the charter goes, the case of an elective officer admitting malfeasance in office is a casus omissus; and since the authority is expressly conferred and expressly limited, the rule in Rex v. Richardson, 1 Burr. 517, has no application, and the Council had no jurisdiction.

It follows that the vote of the Council purporting to dismiss the relator from office, and service of notice of that vote upon the relator, were in and of themselves absolutely nugatory. Standing alone they had no legal effect, and there are no allegations in the alternative writ indicating that any attempt was made to carry them into physical effect by preventing the relator from exercising the duties and functions of his office as a member of the Council. In this respect the case differs from State ex rel. Tyrrell v. Common Councilof Jersey City, 25 N.J.L. 536, where the Council, being without jurisdiction, not only voted to suspend the relator, but also voted that he be not allowed to vote or take part in debate. In the absence of any allegation that the ineffectual vote of dismissal was followed by some action tending to prevent the relator from taking part in the business of the Council, or excluding him from the privileges and emoluments of the office of councilman, the alternative writ does not state a clear case of illegal removal or suspension from office, and does not state a case for the exercise of the extraordinary power of reinstatement.

This is enough to dispose of the case, but it seems desirable to point out another reason why the peremptory writ should not issue. We have said that the relator stood before the Council admitting malfeasance in office, and he stands before the court in the same position, except that by demurrer to the return he also admits recommending the police sergeant to the mayor and councilmen as a candidate for the office of chief of police, if and when a vacancy should arise in that office. The question, then, is whether one whose unfitness for office is admitted on the pleadings, is in any position to invoke the discretionary writ of mandamus to test the question of his right to reinstatement.

The requirement that a suitor must show clean hands is a condition precedent to consideration of the merits, and it applies to mandamus to compel reinstatement in public office with as much, if not greater, force, as in litigation involving only private interests. It was applied, when the dismissal from office was for good cause, but without notice, in Rex v. Mayor of Axbridge, 2 Cowp. 523, and Rex v. Mayor of London, 2 T. R. 177. In McQueen v. Common Council of Detroit, 116 Mich. 90,74 N.W. 387, a boiler inspector had been discharged without notice or opportunity for hearing and defense; but it was admitted that he was discharged for being drunk on duty, and the court said, on petition for certiorari to review the proceedings in the lower court: "We therefore decline to issue the discretionary writ of certiorari to review this proceeding. We, of course, express no opinion upon the question of the power of removal. We only determine that, where one's unfitness for the position is confessed, he cannot invoke discretionary writs to test the question." InPeople ex rel. Wood v. Assessors, 137 N.Y. 201,33 N.E. 145, the relator had sold a small part of a tract of land, and applied for an apportionment of the taxes already assessed. This was done, and about one twelfth of the tax was apportioned to the part sold, but by mistake the assessors' clerk transposed the figures and furnished the relator with a certificate showing that the unsold balance of the tract was taxed at the lesser figure. The relator, knowing the truth, paid the tax as certified and received the collector's receipt. Then the purchaser, by mandamus, compelled the collector to correct his books to conform to the apportionment actually made, and the result was that the relator's premises were advertised for sale for nonpayment of the balance of the tax, and he in turn applied for a writ of mandamus to compel a cancellation of the tax. The trial court granted the peremptory writ on the ground that the collector had no authority to correct his books after the tax had been paid. The General Term held that mandamus ought not to have been granted, and the Court of Appeals, in affirming that order, said: "But there is still a further ground upon which the decision below can be upheld, even if we assume that there was a technical want of adequate authority to make the alteration and correction complained of. . . . The writ will be granted to prevent a failure of justice, but never to promote manifest injustice. It is a remedial process and may be issued to remedy a wrong, not to promote one, to compel the discharge of a duty which ought to be performed, but not to compel the performance of an act which will work a public and private mischief, or to compel a compliance with the strict letter of the law in disregard of its spirit or in aid of a palpable fraud. The relator must come into court with clean hands, and he cannot invoke this extraordinary remedy, as in this case, to evade the payment of his just portion of a tax by taking and claiming the advantage of a confessed mistake." In Burke v. Connolly, 76 Misc. 337,135 N.Y.S. 179, an employee in the classified civil service was removed pending the determination of indictments against him. He was acquitted on one indictment and the others being dismissed, he applied for a writ of mandamus to compel his reinstatement. Speaking of the relator's testimony before the grand jury, the court said that he "exhibited an utter disregard of his obligation to protect the public interests, and an absolute unfitness for the office which he held, and, although acquitted of the crimes for which he was indicted, his permanent separation from the public service will ensure to its benefit. . . . Holding this view, I deem it unnecessary to consider the other questions discussed by counsel in their briefs, which go to the merits of the matter under consideration, preferring to place my decision to refuse the writ as a matter of discretion upon the sole ground that it would be contrary to the public interests to grant it." In State ex rel. Hathorn v. U.S. Express Co., 95 Minn. 442,104 N.W. 556, the alternative writ was issued to compel the defendant to accept packages offered to it for transportation under a statute providing for the issuance of a writ of mandamus to compel common carriers to receive goods without discrimination. The return alleged that the relator was engaged in a lottery scheme, and the defendant might make itself criminally liable for knowingly carrying property pertaining to a lottery business. In upholding the refusal of the trial judge to issue the writ, the court said: "He would have abused his discretion, if, at the instance of one not coming into court with clean hands and for a rightful purpose, but the promoter of a scheme sure to defraud, if not to deceive, he had issued compulsory process." See also High on Extraordinary Legal Remedies (3d Ed.) § 26; 2 Spelling on Injunctions and other Extraordinary Remedies (2d Ed.) § 1380; 26 Cyc. 150; 18 Rawle C. L. p. 138.

There is error, the judgment is set aside, and the