| Vt. | Feb 12, 1916
The charter of the city of Burlington provides that the city council shall appoint a board of water commissioners, which shall have the exclusive general management and control of the water works owned by the city. That these commissioners shall appoint a superintendent, whom they may remove for cause.
That the superintendent shall have the special and immediate care and practical supervision of the water works and property used in connection therewith, but shall at all times be subject in respect thereto to the orders of the commissioners.
On the 25th day of April, 1914, the commissioners appointed the plaintiff superintendent of water works for the term of one year from the 1st day of May then next. He accepted the appointment, entered upon the discharge of his duties as superintendent, and continued therein until removed as hereinafter stated.
In July,. 1914, the water commissioners were removed from office by the city council, and a new board of commissioners was appointed by it. The new commissioners entered into the control and management of the affairs of their office, and continued therein until the latter part of March, 1915, when the decision of this Court in Butter v. Burke, 89 Vt. 14" court="Vt." date_filed="1915-04-09" href="https://app.midpage.ai/document/rutter-v-burke-6586514?utm_source=webapp" opinion_id="6586514">89 Vt. 14, 93 Atl. 842, was handed down.
On the 11th day of July, 1914, the new water commissioners removed the plaintiff, and, having combined the positions of superintendent of the city water works and superintendent of the city filtration plant, on the 13th day of July, 1914, they appointed the defendant superintendent thereof. He accepted the appointment, entered upon and discharged the duties of the position until he gave way to the plaintiff as stated below.
The removal of the first board of commissioners was declared illegal in Rutter v. Burke, supra; and on the 15th day of April, 1915, the new board retired and the old commissioners resumed office. Thereupon, the defendant surrendered his position to the plaintiff, — having received the salary attached thereto from Aug. 1, 1914, to April 7, 1915.
It is for the salary so received that this suit is brought.
The plaintiff predicates his action upon a proposition which may be thus stated: A de jure officer is entitled to and may recover from a de facto officer the salary and emoluments of the office received by the latter during his incumbency thereof.
The word “officer” as commonly used is a term of wide comprehension. But that one serves a corporation, public or private, does not necessarily imply that he is an “officer” of that corporation. His standing in this respect is to be determined, not by what he is called, but by what he does. The distinction between an officer and an employee is frequently overlooked. But it was pointed out by this Court in Powers v. Rutland Railroad Co., 88 Vt. 376" court="Vt." date_filed="1914-12-01" href="https://app.midpage.ai/document/powers-v-rutland-railroad-6586482?utm_source=webapp" opinion_id="6586482">88 Vt. 376, 92 Atl. 463, which was the case of a private corporation, and again in State, ex rel. v. Lee, 90 Vt. 55" court="Vt." date_filed="1916-01-18" href="https://app.midpage.ai/document/state-ex-rel-reynolds-v-lee-6586603?utm_source=webapp" opinion_id="6586603">90 Vt. 55, 96 A. 382" court="Vt." date_filed="1916-01-13" href="https://app.midpage.ai/document/hotel-vermont-co-v-moores-estate-6586598?utm_source=webapp" opinion_id="6586598">96 Atl. 382, which was the case of a municipal corporation. In the latter case, it was held that the superintendent of water works of the city of Barre is not a civil officer in an accurate sense of the term, since he exercises no governmental function; but is, in essence, a business manager of a proprietary enterprise undertaken by the city.
This holding is conclusive of the question under discussion. The superintendent of water works of the city of Burlington is not an officer of the city. He is a mere employee. He is not delegated with a single municipal function, except .so far as he may be, from time to time, entrusted therewith by the water commissioners, who in all things direct and control him. His duties pertain wholly to the proprietary functions of the city and not at all to its governmental functions.
These proprietary functions of municipalities are being constantly extended in these times, and it would be both unreasonable and unjust to extend the rule above stated to all the various positions and employments made necessary therein, though, perchance, the incumbents thereof may be.dignified by being denominated “officers.” To such subordinates the rule does not apply.
This being determinative of the ease, we have no occasion to consider the other questions made in the brief.
Pro forma judgment reversed and judgment for the defendant to recover his costs.