Waterbury evening Democrat., 1894-02-08

MAYOR kILDUFF UPHELD.
Attorney O'Nefl Quotes Authorities
Showing That the Action of the Fire
Board Was Legal.

lDgS RepuO11can, and nOtlnS also Wnat
our Brother Kellogg said in the meeting of
the board of trade the other evening, l
have not changed my opinion. I have,
however, reviewed the authorities looked
into last week, which included those cited
by the City Attorney Burpee. On exam
lining Dillon's Municipal Corporations, Vol
1, Section PIT, ed 1890, the greatest law
book published since Blalkstone's Com
mentaries, so the legal critics say, find
the following:
at was a settled rule of law respecting
the old corporations in England that the
Office of the mayor or other head officer
was annual and absolutely expired at the
end of the year; and that without an ex-
press clause in the charter he could not
Hold over until his successor was provided.
The right in snch case to hold over did not
exist by implication and was not an Incl
dent to the Office"
This doctrine is supported by more than
a half dozen cases cited from the early
English books. In some charters, however,
It was in terms provided that the officer
should hold until his successor was chosen.
This right under these charters was fire.
quently abused by neglecting to hold an
election and the officer continued his term.
This abuse gave rise to the statute of
Anne, which provided that no person in
such annual Office should be chosen for
the year ensuing. Later in the 5 and 6
VIM ", chapter lxXvi section 40, under
the municipal corporations act tt was pro-
vided that the mayor shall be elected each
year at the meeting fixed for the 9th of
November, and shall continue in his office
for one whole year. This act was
amended in the following year by adding
"shall continue in Office for one whole
year and until his successor shall have ac-
copied the office of mayor and made and
subscribed the requisite oath"
Now it will be noticed that the English
common law was that an annual officer had
no right to hold over after the expiration
of his term; that this common law was
changed by the statutes of VIM " above
cited. =
1t is a well settled doctrine that the COM
mon law of England prevails in this state;
that such acts of parliament as We're in
force in England when the colonists came
here from England and were adapted to
our institution are the common law of this
country, so that we have plain view of
English common law that an officer has no
right to hold over after the expiration of
his term, modified by an English statute
that in cases of annual appointments, I'M
less there are restrictive words he shall
hold over.
Ia the case of the fire chief the appoint
ment is for three years and not annually.
The three cases cited by Brother Burpee
are all of them annual appointments. The
first, from Roots reports, was the case of
a constable, who had been elected TO- one
year and then again elected for a second
year but had not qualified under his second
appointment. The court said: 1T is IA well
hat off
tinues until superseded by the appoint
ment oe another in his place. In the
second case cited from the 9th of Connect
icut, one Timpson was appointed secre-
tary in January, 1922, and likewise in
January, 1928, for the ensuing year. The
court again said: at is well settled
principle that an annual officer continues
until superseded by the appointment of
another IN his place" In the third case the
committee of ecclesiastical society under
a certain statute law was appointed annually
and the court called upon to decide
whether the committee holding after the
expiration of their term were still in Office
referring to the two cases in the l of Root
and of Connecticut repeated again that
''it is we'll settled principle that an an
nual officer continues until superseded by
the appointment of another IN his place
the doctrine that all officers who hold not
for year but for three years or eight years
or term to be fixed by the appointing
power as was the case of the street inspec-
tor decided some years since in our supreme
court, seems to me to be no authority
whatever for the position.
The judges of our supreme and superior
courts are appointed for eight years. Would
anybody claim that they would hold over
until successor is appointed? United
States senator is appointed for six years,
might he hold over until his successor is
appointed? Has it not frequently hap
penedi in the past that some of the states
have not been represented in the senate of
the United States when successor had not
been appointed?
OF course / am not now arguing any
thing, but the right to hold over. If in
point of fact MIR Snagg continued to act as
chief; and he was recognized as such by
all departments of the municipal govern
ment, no doubt his acts would be binding
and lawful as those of defacto officer.
Undoubtedly the acts of any officer per-
forming duties after having been elected
or appointed illegally. if the election or
appointment has been acquiesced in, are
legal.
The real question is of course whether
the chief would have the right to hold
over rs against the public, or upon an APP
plcation for a writ of quo warranto where
his right to hold the Office after his term
expired would be directly put in issue and
decided.
In the case of the People VS. Bartlett in
the 9Th of Wend, 1872, decided in New
York in 1881, the charter provided that
certain trustees should continue in Office
for one year and until a new election
should be made. They neglected to warn
a meeting to fill the Office at the end of the
year, and continued to act after the ex-
quo warranto, the court decided that
were good after the expiration of the year;
that their title to the office was also good
until it was called in question by quo war
ranto proceedings, and that after they were
ousted they would have no title. OF course
where the officers are elected for term,
and until their successors are elected and
qualified, or where they are elected
for the year ensuing and there is no
restrictive clause the officer may
continue to hold and exercise his Office
after the expiration of the term or of the
year. But this is the extent to which any
English or American decision has gone
which can find
From the foregoing it will be seen that
am of the opinion that the action of Mayor
Kilduff in reference to the fire chief was
correct, and that have not changed that
opinion from anything I have heard or
seen since, but I am confirmed in my
opinion on a review of the authorities.
JOHN O'NEILL.
Attorney Burpee's Opinion.