Menard v. Society of St. Jean Baptiste. thirty days, and he who shall neglect to pay in that time shall be stricken from the list of members." This section. does not in terms apply to the first contribution to the fund for widows and orphans, but as it applies to all subsequent taxes it would seem to be a reasonable construction to say that it was intended to apply to this also. If it is a remedy to enforce the payment of the fee in question is it reasonable to suppose that it was intended to provide an additional remedy by a forfeiture of the member's benefits? Section six of article 20 is as follows: "Each member in arrear to the society shall lose his benefits for a period of time equal to that during which he shall have been indebted to the association, dating from the day of his restoration to good standing." That seems to imply that the delinquent's name shall have been stricken from the list of members and restored. If that has not been done is it quite certain that there is any forfeiture? forfeiture? Without deciding this point we pass to the question of waiver. The association took no measures to enforce payment for the beneficiaries. It did not strike his name from the list of members. It allowed the plaintiff to remain an apparent member, and received from him the monthly dues and fines for one year and four months; such dues and fines constituting the principal source from which the fund for sick benefits was derived. We think that was clearly a waiver of any forfeiture. Bevin v. Conn. Mutual Life Ins. Co., 23 Conn., 244; Fitzpatrick v. Hartford Life & Annuity Ins. Co., 56 id., 116; McGurk v. Metropolitan Life Ins. Co-, id., 528. The society cannot retain his membership for the purpose of receiving dues and fines, and deny it for the same time for the purpose of defeating his right to receive benefits. If he is a member for one purpose, he is for both. There is no error in the judgment appealed from. In this opinion the other judges concurred. State ex rel. Rylands v. Pinkerman. 63 176 67 310 63 176 69 224 70 121 THE STATE ex rel. JOHN RYLANDS v8. JOHN P. PINKERMAN. New Haven & Fairfield Cos., April T., 1893. CARPENTER, TORRANCE, An appellee cannot maintain a plea in abatement of an appeal from a judgment of ouster in a quo warranto proceeding on the ground that he is in undisturbed possession of the office and that the appellant no longer claims it, unless the inquiry whether the judgment appealed from was right or wrong has become immaterial. The relator in a quo warranto proceeding had been declared to be removed from the office of chief of police of a city by the board of police commissioners, who thereupon assigned the duties of the office to the defendant, who as captain of police was next in rank in the police force. The court having rendered a judgment of ouster against the defendant, he appealed to this court. The relator pleaded in abatement of the appeal that he had been put into possession of the office and that since the appeal the defendant had been removed by the police commissioners from the office of captain of police. The defendant replied that he was removed upon the relator's charges and that the causes assigned for his removal were his refusal to obey the orders of the relator and his continuing the litigation in spite of the adverse decision of the court. To this replication the relator demurred. Held that there was not sufficient ground for an abatement of the appeal. Though a proceeding of this sort is in the name of the state, yet the relator is the substantial complainant and conducts the cause. A city charter provided for the appointment of a board of police commis. sioners of four electors of the city, to be divided between the two leading political parties, two of whom should be appointed each year and all of whom should hold office for two years and until their successors should be appointed and qualified, any vacancy occurring to be filled in the same manner. Held that when a vacancy was filled the appointee held the office only for the residue of the term of his predecessor and not for two years. W, a police commissioner appointed to fill a vacancy, claimed the right to hold the office for two years, and, after the term of his predecessor had expired and a member had been appointed in his place and sworn, he acted at a meeting of the commissioners. Held 1. That the action of the board in removing the relator from the office of chief of police, and which required the vote of W to make the necessary majority, was a nullity, unless W was a commissioner de facto. 2. The court below found that at no time after the expiration of his legal term did W have the reputation of being a police commissioner, nor were his acts and authority as a pretended commissioner generally recognized or acquiesced in, nor was he an incumbent of the office under such apparent circumstances of reputation or color as would have led State ex rel. Rylands v. Pinkerman. men to suppose that he was a legal commissioner, nor did he exercise its duties under such circumstances of continuance, reputation or acquiescence as reasonably to authorize the presumption that he was a commissioner or as were calculated to induce people without inquiry to invoke or submit to his action. Held that this finding was decisive as to his not being a de facto commissioner. 3. That even if W had been a de facto commissioner the want of notice of the meeting to the rightful commisioners would have been a fatal objection to the validity of the action of the board. By the city charter the mayor was to appoint the police commissioners by and with the consent of the board of aldermen. On the expiration of W's legal term as commissioner, the mayor sent in the name of Ras his successor, W claiming that his term had not expired and that there was no vacancy. By the rules of order of the alderman, their modes of proceeding, where not otherwise provided for, were to be governed by parliamentary practice as set forth in Cushing's Practice of Legislative Assemblies. Held that W, as one of the aldermen, had a right under that practice to vote upon the question of the confirmation of Ras his successor. If W had not had the right to vote upon this question, yet after his vote had been received and the result declared by the presiding officer, there was no remedy but by formal action of the house in passing a motion for its disallowance. The mayor called a meeting of the board of aldermen to be held on May 20th, at half past seven in the evening. By the charter he presided and in case of a tie had a casting vote at their sessions. There were twelve aldermen and seven were necessary to a quorum. The mayor and six aldermen attended, and a warrant was issued by the mayor, under authority of the charter, to bring in the absent members, who had left the city, but who came in on the 22d. The meeting had been kept open from the 20th, and on the attendance of the six members who had been absent, was called to order by the mayor, who presented in writing the nominations of R and S as police commissioners. Objection was made to its presentation, which resulted in a tie vote, upon which the mayor gave a casting vote and declared the nominations in order. Votes confirming the nominations were then had, resulting in each case in a tie vote, the mayor giving a casting vote in their favor. Held— 1. That the mayor having by the charter the right to give a casting vote in case of a tie, his right to do so applied to all proper business acted upon. 2. That an error in the warrant, issued to bring in the absenting members, by which the meeting of the aldermen was described as called for 8 o'clock in the evening, instead of 7.30 o'clock, was of no consequence, as no one could have been misled by it. 3. That it was not material whether the nomination of the police commissioners was taken from the table as old matter, in pursuance of the rules of the board, or taken up as new matter. The aldermen had power to suspend or disregard their rules of order by a majority vote, and in VOL. LXIII.-12 State ex rel. Rylands v. Pinkerman. voting to consider the nominations, they in effect suspended all rules inconsistent with such action. 4. That the specification in the call for the meeting of certain matters to be acted upon, did not preclude action on the nominations, though not mentioned in the call, such action being within the range of its general powers. 5. That it was not necessary, for the purpose of keeping open the meeting of the aldermen from May 20th to May 22d, that the members who attended on the 20th should remain in actual session. 66 The common council, which by the charter had power to pass and repeal ordinances relating to the police department, passed an ordinance providing that the office of chief of police is hereby abolished," and that "the captain of police shall be vested with all the powers and shall perform all the duties formerly exercised by or imposed upon the chief of police." Held 1. That if this ordinance was to be construed as a mere attempt to remove the incumbent of an office and appoint another to exercise its functions, it would be void, the removal of the chief of police being a matter within the sole jurisdiction of the police commissioners. 2. But that if it could be supported as a legitimate exercise by the council of its authority to make and repeal ordinances with regard to the police department, it was the duty of the court to give it such a construction as would make it operative. 3. That the ordinance would bear such a construction. An office created by ordinance can be abolished by ordinance. Our statutes in many cases give to the chiefs of police of cities certain powers and impose upon them certain duties, but no duty is thereby imposed on any city to maintain an officer known by that designation. The state has dealt with his functions, not with his name. Under a city charter providing for a common council of two chambers, and giving the mayor power to approve or disapprove such measures as the common council may adopt, he has no power to approve or disapprove the votes of either chamber on matters committed by the charter to its sole and separate action. A meeting of a board of city government called for half past seven o'clock, was not called to order until a quarter past eight o'clock. Held that this delay was not necessarily unreasonable, and did not affect the legality of the meeting. [Argued April 19th,-decided June 5th, 1893.] INFORMATION in the nature of a quo warranto, filed in the Superior Court in Fairfield County in October, 1891, against the captain of police of the city of Bridgeport, for usurping the office of chief of police of the city, claimed to belong to the relator. The defendant pleaded that the relator had been duly removed from the office of chief of State ex rel. Rylands v. Pinkerman. police on June 11th, 1891, by the board of police commissioners of the city for cause, and that they thereupon had committed the exercise of the duties of chief of police to the defendant, being the officer next in rank, pursuant to the city ordinances; and also that, on September 23d, 1891, the office of chief of police was abolished by a city ordinance, under the provisions of which the defendant was lawfully exercising the duties formerly pertaining to that office. A demurrer to so much of the plea as set up the passage of the ordinance abolishing the office of chief of police was sustained by the Superior Court, (Andrews, C. J.) To the other allegations of the plea a replication was filed, setting up in detail the mode in which the board of police commissioners, by which the vote of removal was passed, was constituted, and certain alleged irregularities in its proceedings, through want of notice of its meetings to all its members, want of a quorum, etc., which are sufficiently stated in the opinion. A rejoinder was pleaded alleging that the board of police commissioners was constituted, not of the persons and in the manner alleged in the replication, but in part of different persons, otherwise appointed, and that this board, as thus constituted, had proceeded regularly in the removal of the relator. Other facts bearing on the same points were set up by surrejoinder, and the pleadings closed by a rebutter. The trial of the issues of fact was had to the court (Prentice, J.,) and judgment of ouster rendered March 23d, 1892. A notice of appeal by the defendant was filed on the same day, and a special finding of facts having been subsequently made, the appeal was perfected on June 20th, being taken to the October term of this court, 1892. At the April term of this court, 1893, the State, on the relation of John Rylands, filed a plea in abatement of the appeal, alleging that on June 25th, 1892, the board of police commissioners had removed the defendant for cause from the office of captain of police, and appointed his successor, who had duly qualified and entered upon the duties of the office on that day, since which the defendant had not exercised any of said duties nor interfered with the relator in the exercise of his |