This demand for the salary of this position from February 18th, 1908, is based in part upon the claim that the position of examiner of records is a public office and that its incumbent is a public officer. We have held in the case of State ex rel. Neal v. Brethauer, ante, p. 143, 75 A. 705, that this examiner of records is not a public officer, within the proper meaning of that designation. Hence any claim in this case based thereon falls to the ground, and we treat this plaintiff simply as an employee of the city of New Haven. *Page 154
Another claim of the plaintiff is that this position of examiner of records comes under civil service rules, and the action of the director of public works in the matter of this dismissal was irregular and illegal, and, therefore, that the plaintiff has been, ever since May 22d 1908, in the employ of the city; and being ready at all times since said date to perform the duties of that employment, he insists that he should be allowed the pay incident to the position at least from that date. We cannot accede to these claims.
In the first place, assuming that this clerkship is within the civil service rules, as it is, what does this mean? It means that an applicant for the place shall be subjected to an examination in certain branches of knowledge, to demonstrate his fitness for the position; and, further, it means that having passed this preliminary examination and having been accepted, he shall not be removed except for cause duly shown, which cause shall not be political, and that the questions of cause, and whether duly shown, plainly must depend upon the entire situation as disclosed in each particular case. But whatever else the civil service rules may mean, they do not mean, and we hold that they never were intended to mean, that a clerk, an employee of this department, may absent himself from his work for weeks and months at a time, and utterly neglect to perform any of the duties incident to his position, either from caprice or sickness, and still hold his position, and still have the legal right to demand the salary attached to it, after his employer has in good faith and for such absence and neglect discharged him.
The absence is admitted, the neglect is conceded, but it is insisted on the part of the plaintiff that the city violated the civil service rules by peremptorily dismissing him, without notice and without a formal hearing. Such an interpretation as this would be an abuse *Page 155 of civil service rules and principles, and not a proper or legitimate application thereof. This plaintiff has suffered no surprise, no injustice, by this action on the part of the director of public works. The plaintiff knew as early as April 6th that his resignation would be expected if he did not return by April 13th; and he knew that his place would then be filled, but he did not return, and he did not send his resignation, but instead asked for a extension of time, promising to return in three weeks.
The plaintiff did not return in three weeks, and the director of public works, on May 5th, selected another man for the place, and the new man entered into the employment. Even then the plaintiff did not present himself for work until May 22d, the day on which he was informed by the director that his services were no longer required.
Under these circumstances we are satisfied that there has been no violation of civil service rules or principles.
This dismissal was most plainly for cause, and so far as necessary to be shown, was duly shown; there was no need of further showing what was an undisputed fact, to wit, that he had absented himself from work for over four months; this was admitted — this was the cause. What need, then, in justice to this man, or under any reasonable application of civil service rules, that he should have had any other or a different notice, or any different or other hearing, than that which he did have? We can see none.
The director of public works was in general terms and without restriction empowered by the charter to appoint and employ his clerical force, and it follows that he had the right and power to discharge this plaintiff, subject only to the restrictions that such discharge must be "for cause duly shown, which cause shall not be political." *Page 156
It is very clear that the director of public works did not fail to keep within these restrictions.
Another question is raised by the plaintiff, growing out of the claim that he is in any event entitled to his pay from the 18th of February up to the time of his actual dismissal; but we cannot accede to this. It is true that he continued to receive pay from January 16th up to February 18th from the city, but this was a mere matter of grace on the part of the city and not a legal right of the plaintiff. He was doing no work at that time, and thereafter, up to the time that he was notified that his services were no longer required, he did no work; and being simply an employee, he was not entitled to receive pay when he did no work.
The Superior Court is advised to render judgment for the defendant to recover its costs.
Costs in this court will be taxed in favor of the defendant.
In this opinion the other judges concurred.