McDermott v. City of New Haven , 107 Conn. 451 ( 1928 )

The plaintiff brings this action to recover salary claimed to be due him as a police officer of the defendant city. On December 21st, 1926, he was suspended, without pay, by the chief of the police department, by virtue of authority conferred upon him in the city charter. The chief reported this action to the board of police commissioners in writing, and on January 3d 1927, it voted to continue the suspension. On February 7th, 1927, on recommendation of the chief, the board again continued it. On March 7th, 1927, the plaintiff was dismissed from the department. The trial court rendered judgment for him to recover salary for the period beginning ten days after his suspension by the chief and ending with his dismissal, and the defendant has appealed.

The defendant's charter provides that the chief of the police department shall assign to duty all members of it and it also gives him power to suspend, without pay, any member "provided, however, that no such suspension shall be continued for a period of more than ten days without affirmative action by the commissioners of his department, which action shall not be taken until after a hearing upon charges preferred in writing; a copy of such charges shall be left with said officer at least forty-eight hours prior to the time fixed for such hearing." Charter of the City of New Haven, § 60; 13 Special Laws, p. 407. There is no pretense that there was in this case any compliance with the limitations upon the powers of the commissioners which require a hearing upon charges preferred in writing, served upon the officer at least forty-eight hours prior thereto. There was then no valid suspension of the plaintiff after the initial action of the chief.State ex rel. Rylands v. Pinkerman, 63 Conn. 176, 193,28 A. 110; State ex rel. Hosford v. Kennedy, 69 Conn. 220,226, 37 A. 503; Thompson v. Troup, 74 Conn. 121, 123, 49 A. 907; Sullivan v. Martin, 81 Conn. 585,591, 71 A. 783. That under the circumstances the plaintiff ought to have been suspended and that the same result might have followed had these limitations been complied with, furnish no excuse for the disregard of the plain mandate of the charter.

Police officers of the defendant city are public officers. McDonald v. New Haven, 94 Conn. 403, 411,109 A. 176. The salary provided by law for a public officer does not arise out of contract and is not dependent on the amount and value of the services rendered, but it belongs to him because the law attaches it to the office he holds. Sibley v. State, 89 Conn. 682, 685,96 A. 161. It is generally held that where a public officer is wrongfully suspended or expelled, he is entitled to recover the salary accruing during the period he is thus unlawfully removed from his office. Emmitt v. New York, 128 N.Y. 117, 28 N.E. 19; Fitzsimmons v. Brooklyn, 102 N.Y. 536, 538, 7 N.E. 787; Newberry v. Smith, 157 Mich. 181, 121 N.W. 746; State ex rel.Chapman v. Walbridge, 153 Mo. 194, 54 S.W. 447;Andrews v. Portland, 79 Me. 484, 491, 10 A. 458; note, Ann. Cas. 1918B, 442.

The contention of the defendant that the plaintiff abandoned his office is answered by the finding that he did not do so. The only fact found to support this contention is that, though the plaintiff was at all times ready, able and willing to perform his duties, he never reported or offered to report for duty; but the nominal suspension actually operated to prevent him from acting in the capacity of a police officer; Phillips v. Boston,150 Mass. 491, 492, 23 N.E. 202; and the conclusion of the trial court, being one of fact and not unreasonable, illogical or contrary to law, must stand. ChatfieldCo. v. O'Neill, 89 Conn. 172, 175, 93 A. 133;Wardlow v. New York, 137 N.Y. 194, 33 N.E. 140; People ex rel. Dineen v. Bradford, 267 Ill. 486, 493,108 N.E. 732. That he did not actually offer to perform services is no defense to the city. If justification for his failure to do so is needed, it is found in the fact that he was at all times under a nominal suspension, that when the chief first acted in the matter, he took from him his badge of office and never offered to return it, and that under the provisions of the charter to which we have referred the burden of assigning him to duty rested upon the chief. Obviously a tender of services would have been unavailing and the law does not require an act which would be a mere futility. Tracy v.O'Neill, 103 Conn. 693, 699, 131 A. 417.

There is no error.

In this opinion the other judges concurred.