The relator, by vote of the Council of the City of Norwalk, was dismissed from the office of councilman and his office declared vacant. My associates agree that the action of the Council was beyond its power, and the respondents did not controvert this position. The demurrer to the complaint presents the case of an officer, elected by the people of Norwalk, dismissed from his office, and the office declared vacant, by a body acting without the sanction of law. There is no question made upon the record as to the relator's legal right to this office and to its immediate possession, nor any question but that these respondents by their action have deprived him of his legal right to his office. The vacancy in the office has not yet been filled. A restoration to his office is his right, and a remedy which does not accomplish that cannot be called an adequate remedy. An action for damages will not give the relator his office. He has no adequate remedy other than by a writ of mandamus restoring him to his office. My associates hold that mandamus will not lie for two reasons: first, that the alternative writ of mandamus in this case "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." In an earlier part of the opinion my associates say the vote of the Council and its service upon the relator "were in and of themselves absolutely nugatory," so that we think the statement that "the alternative writ does not state a clear case of illegal *Page 226 removal or suspension from office," is an inadvertence. Its position that the alternative writ does not state a case for the exercise of the extraordinary power of reinstatement by way of mandamus, is rested upon the ground that the vote of dismissal should have been followed by some action of the Council "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." This, the majority opinion asserts, is enough to dispose of the case.
It will be at once recognized that the denial of this remedy to this relator upon the ground that he should have alleged that the Council had, in addition to its vote of dismissal and declaring the office vacant, further voted not to allow the relator to take part in the business of the Council, or by some action tending to prevent the relator acting as councilman, is a purely technical ground. Neither the motion to quash nor the demurrer to the defendant's return made this point. It does not appear in the record. The respondents in their brief and in their oral argument did not make the point. The only authority cited in its support in the majority opinion is State ex rel. Tyrrell v.Common Council of Jersey City, 25 N.J.L. 536. There the vote was to suspend the relator, but also that he be not allowed to vote or take part in debate. If the vote of suspension was valid, that prevented the councilman thereafter voting or taking part in debate, and the addition of the specific prohibition did not add to the effectiveness of the vote. In the instant case the relator was dismissed from office and his office declared vacant. No subsequent action of the Council forbidding the relator from taking part in the business of the Council, could add to the effectiveness of this vote. Requiring the relator to demand of the Council the *Page 227 right to serve as councilman, would have been an idle ceremony and might have precipitated a breach of the peace. We are satisfied that the writ of mandamus cannot be refused upon this ground. The right of this relator to this writ is, we think, clear under our law.
In State ex rel. Comstock v. Hempstead, 83 Conn. 554,556, 78 A. 442, we held: "A public official, such as the relator, ousted from an office in the performance of whose duties he is engaged and which he holds by clear legal title, can be restored to his office by mandamus, so long as the office is not filled by an occupant having color of title." In this case, at page 561, we thus summarize the function of the remedy by way of mandamus to secure a restoration to a public office:"Mandamus neither gives nor defines rights which one does not already have. It enforces, it commands, performance of a duty. It acts at the instance of one having a complete and immediate legal right; it cannot and it does not act upon a doubtful or contested right, hence it cannot adjudicate a title, nor settle conflicting claims to an office. It is an expeditious remedy called into action to protect an undoubted legal right. It will restore one to an office from which he has been illegally removed when a successor is not filling the office under color of title. It cannot restore one to an office from which he may have been illegally removed, when a successor is filling the office under color of title."
A reference to the cases cited in State ex rel. Comstock v. Hempstead, and to the standard textbooks with the cases therein cited, will show that the doctrine enunciated in State ex rel. Comstock v. Hempstead is established law in this country. 2 Bailey on Habeas Corpus, § 248; High on Extraordinary Legal Remedies (3d Ed.) §§ 67-70 inclusive; 2 Spelling on Injunctions and other Extraordinary Remedies (2d Ed.) §§ 1572-1579. The *Page 228 respondents did not controvert these principles of our law, nor do we understand the majority opinion to controvert them. The opinion agrees with us that the relator has been illegally deprived of his office and that mandamus is the only remedy for him to pursue in order to be restored to his office, but my associates insist, aside from the point of the inadequate allegations of the alternative writ, that the issuance of the writ is not a matter of right but one to be exercised in the sound discretion of the court, and that the circumstances of this case make it impossible, in the exercise of a sound judicial discretion, to issue this writ in behalf of the relator, since the admitted facts disclose that the relator is not in court with clean hands. The facts upon which this claim rests are in the admission of the allegations of the complaint by the motion to quash, that is, the admission by the motion that the relator asked a policeman of the City of Norwalk if he knew where the relator could buy some whiskey, and at a later date, while the policeman was off duty, that he went with him to one Vaclanik, where the relator bought some whiskey, and later, on two occasions, the relator came to Vaclanik and purchased whiskey of him.
The demurrer to the return admits the allegations of paragraphs nine and ten of the return, which allege that the relator, in violation of his oath as a councilman and as an elector, solicited and prevailed upon Gibson, a police sergeant of the City of Norwalk, to place him in a position to buy liquor in violation of the United States Prohibition Laws, and did in fact buy liquor in violation of these laws, and did sell and offer to sell such liquor in violation of the law of the United States and of the State of Connecticut, while holding the office of councilman of that city. And the further allegation of the return that the relator, in *Page 229 anticipation of a change in the office of chief of police of that city, and as a reward to this police sergeant, did urge the mayor and members of the council of the city to promote the sergeant to the office of chief of police. These are the only facts in the record upon which the respondents based their claim that the relator was in court without clean hands. The facts stated in the majority opinion go somewhat beyond these allegations, but we anticipate that the issue of clean hands is no stronger upon the facts stated in the opinion than in the record, unless, indeed, the facts in the opinion be read as describing conduct on the part of the relator as a councilman. This, as the record shows, is not this case.
The immediate question is whether or not the court can refuse to issue the writ in behalf of a relator to restore him to an office when the writ admits such improper conduct on the part of the relator, but not related to his office, as to show his unfitness to hold his office. If the court can exercise its discretion in this way, it follows that one may be dismissed from any elective office to which his title is absolute, by a body acting without authority of law, and although the facts present show an illegal removal and absolute legal right to the writ, the court may in its discretion refuse to issue the writ and thus leave the relator remediless. The court will then add to the causes of removal another cause not found in the statute, and enforce it, although the body authorized by the statute to make removals for a named cause or causes cannot act for such an offense.
We think Mr. Bailey, in his work on Habeas Corpus, Vol. 2, § 201, points out the fallacy in such an attempted exercise of discretion, when he says: "I infer therefore, the discretion referred to in many of the cases, is that the court may refuse to issue the writ, *Page 230 where it does not clearly appear that he [the relator] is entitled to it, not that the court has such a discretion, where the right clearly appears. Practically in all the cases which assert the mandamus as a discretionary writ, it will be found, that the writ was denied upon the ground that the relator's right did not appear. It would be strange indeed, if a party was possessed of a clear right and had no other remedy, that courts had a discretion which could be exercised to deny him mandamus to enforce that right. It is the boast of our law, that there is no wrong without a remedy."
That the court has no discretion in a case such as the instant case was decided in Daly v. Dimock,55 Conn. 579, 590, 12 A. 405, where we said: "But it is said that the writ is not demandable as a matter of right, but is awarded in the discretion of the court. It is doubtless true that in many cases the court will exercise its discretion. The court, however, will not refuse the writ where the relator has a clear legal right, there is a substantial matter involved, and there is no other adequate remedy."
In Illinois Central R. Co. v. People, 143 Ill. 434,458, 33 N.E. 173, the court reached a like conclusion, saying: "It is urged by counsel for appellant, that the writ of mandamus should have been refused by the trial court upon the alleged ground that the exercise of a sound judicial discretion would naturally lead to such refusal. If a clear legal right to the writ is shown by the party applying for it, he is entitled to its issuance."
In Moody v. Fleming, 4 Ga. 115, 117, the Supreme Court, while stating that the writ is not one of mere right but of discretion, concluded: "We would, however, not be understood to say that the courts in this country could refuse this writ when demanded by a person *Page 231 holding a clear legal right under the laws of the State, with no other remedy to enforce it."
Mandamus was held to have been properly refused, as within the discretion of the court, in a case where the relator had delayed his compliance with the rules of court, so that his conduct had made it inequitable in the judgment of the trial court to then issue the writ. Ansonia v. Studley, Judge, 67 Conn. 170, 180,34 A. 1030. So in United States ex rel. Turner v.Fisher, 222 U.S. 204, 209, 32 Sup. Ct. 37, the writ was refused to enforce rights fraudulently acquired. Of such a case the court says: "But mandamus is not a writ of right. It issues to remedy a wrong, not to promote one, and will not be granted in aid of those who do not come into court with clean hands." These are examples where the court has properly exercised its discretion.
In a case such as this, where the relator was illegally removed from an office to which he had title and no one has been appointed or elected to fill the vacancy, the court has no discretion other than to restore to the relator the office from which he was illegally dismissed. The maxim that one who comes into equity must come with clean hands, if applicable to an action of mandamus, can only apply, upon this record, to the office to which the relator seeks to be restored. The relator was not dismissed for dereliction of official duty; so far as the record shows, the relator's official conduct as a councilman was not questioned.
Originally the power of issuing or refusing the writ was exercised by the King, and hence was within his absolute discretion. When the power was vested in the courts of England, it in a sense was still a discretionary power, yet it was no longer an absolute discretion. In cases where the writ was refused upon the ground of discretion, to a relator seeking to be restored *Page 232 to office, it will be found, as a rule, that the cases were those where the relator had not made out a clear legal right to the remedy, or those where his conduct in relation to the office had been such as to make it inequitable to grant him the relief sought.
We know of no instance where a court of last resort has held that a court could refuse the writ to one who had been illegally dismissed from his office and whose conduct as to the office and the institution of the proceeding had been free from fraud, delay, or other conduct making it inequitable to issue the writ. The discretion over the issuance of the writ arose out of the prerogative power from whence it came, but now it is to be treated, in cases where the legal right of the relator is assured, much like other actions. "Doubless the writ was originally a prerogative one, but it has ceased to depend upon any prerogative power, and is now regarded in much the same light as ordinary process." Gilman v. Bassett,33 Conn. 298, 305; 2 Bailey on Habeas Corpus, § 198.
The conduct of the relator showed a disrespect for law which was highly reprehensible. The action of the Council showed on its part a respect for law which is highly commendable and should be the attitude of all good officials and citizens. It made the mistake of acting beyond its powers in its endeavor to rid the Council of a member who had offended against the law of his country and State by conduct contrary alike to the moral code and to the law. Nevertheless, this relator was entitled to the remedy given him by the law of our State, and to deny to him his right to be restored to his elective office as a mere matter of judicial discretion, in our judgment, conflicts with sound public policy.
In this opinion CURTIS, J., concurred. *Page 233