151 A. 268 | Conn. | 1930
Counsel for the city contend that the position of assistant director of public works, created by the ordinance of February 21st, 1927, was a mere employment and not an "office" within the intendment of the charter provision forbidding the abolition by the common council of any existing office, that if it was an office its creation was beyond the power of the common council and that in any event, being an office created by the common council, it was not within the inhibition of the charter provision.
"A public office is the right, authority and duty, created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of government, to be exercised by him for the benefit of the public. The individual so invested is a public officer." Mechem on *671
Public Officers, § 1. As indicated in this generally accepted definition the three essential characteristics which differentiate a public office from a mere employment under contract are (1) an authority conferred by law, (2) a fixed tenure of office, and (3) the power to exercise some portion of the sovereign functions of government. The position occupied by the plaintiff was created by an ordinance of the common council, and, assuming that the council acted within the powers conferred upon it by the city charter, the office was one created by law. It was created for a given period with a fixed tenure of office. In order to meet the third test it must appear that the incumbent of this position was invested with some portion of the sovereign functions of government. The director of public works of Bridgeport is a recognized public officer invested with sovereign authority with reference to the matters intrusted to his care in the city charter. Burrell
v. Bridgeport,
The defendant city contends that the common council was without authority to create such office. The city was without inherent power to create such office since it "can do no act nor elect any officer unless it is authorized to do so by its charter." State ex rel.Southey v. Lashar,
Subsequent to the decision in State ex rel. Stage v.Mackie, supra, the legislature granted to all towns and municipalities in the State broad powers in the enactment of by-laws and ordinances, including the power to create or abolish any appointive office, department or commission. Public Acts of 1913, Chap. 154; General Statutes, Chap. 25. This measure of *675
home rule granted to towns and municipalities by the Act of 1913 was somewhat curtailed in 1923 by the passage of an Act (Chap. 284) amending Chapter 25 of the General Statutes by striking therefrom the provision authorizing them to create or abolish appointive offices, departments or commissions. This general legislation, first granting and then withdrawing the power of municipalities to create or abolish appointive offices, did not affect specific provisions of the charter of the city of Bridgeport. Wardell v. Killingly,
The provisions of § 5 of the charter contain a delegation of power broad enough, in our opinion, to authorize the common council to create by ordinance the office of assistant director of public works. The amendment of the charter approved March 1st, 1923, quoted in the statement, forbade the common council to abolish any existing office. The ordinance of November 25th, 1929, purporting to abolish this office was therefore ineffective to accomplish that purpose unless — and this is the defendant's final contention — the restraint upon the power of the common council to abolish an office is limited to those offices created by the Act of the General Assembly. The defendant's charter authorizes the common council to make, alter and repeal ordinances not inconsistent therewith. The defendant's argument is that, since the power to amend or repeal an ordinance carries with it the power to change the duties and powers of an office created by such ordinance, the common council has inherent power to abolish offices created by its own acts which is essential to the proper exercise of its general powers — that it is an anomaly to say that it has power to repeal an ordinance creating an office but no power to abolish the office, and that such a construction of the charter amendment would result in the perpetuation of offices *676 found to be unnecessary, and would inhibit the power of the common council to amend or repeal its own ordinances. If it be conceded that some such result might follow it would be a persuasive argument addressed to the wisdom of the enactment of such legislation. However this may be, it neither shows nor tends to show that the General Assembly intended, in the use of the words "existing offices" in this Act, to include only those offices created by its own Act. There is no suggestion of such limitation either in this Act or in any subsequent Act of the General Assembly, and the construction contended for by the defendant has never had the supporting sanction of municipal usage by this defendant. The opinion in Connelly v.Bridgeport, supra, is confirmatory of our construction of these words. Neither this argument of the defendant, nor that based upon the presumed intention of the legislature as indicated by the course of legislation relative to this subject, can avail to require a construction of the charter amendment as claimed by the defendant. The language of the Act is broad and explicit, and does not permit of any other meaning than that clearly and unequivocally expressed, to wit: that the common council of Bridgeport shall not abolish "any existing office." None of the exceptions contained in this Act are present in this case.
We answer the questions propounded to us as follows: One, Yes. Two, Yes. Three, No. Four, Yes.
In this opinion the other judges concurred.