Kelly v. City of Bridgeport

• Decision Date: 09 July 1930
• Citation: 151 A. 268,111 Conn. 667
• Court: Connecticut Supreme Court
• Parties: KELLY v. CITY OF BRIDGEPORT.

151 A. 268

111 Conn. 667

KELLY v. CITY OF BRIDGEPORT.

Supreme Court of Errors of Connecticut.

July 9, 1930

Case Reserved from Court of Common Pleas, Fairfield County; Samuel C. Shaw, Judge.

Action by Dennis J. Kelly against the City of Bridgeport to recover compensation alleged to be due plaintiff as an official of defendant, reserved by the court on an agreed statement of facts for the advice of the Supreme Court of Errors.

Questions answered.

On February 21, 1927, the common council of the city of Bridgeport adopted an ordinance providing that during the month of March, 1927, and annually thereafter, the director of public works should appoint an assistant director of public works at an annual salary of $3,000, who should be under the direction and supervision of the director and in his absence should perform all the duties of the director. On March 30, 1929, the plaintiff was duly appointed assistant director of public works for the term of one year from that date. On November 25, 1929, the common council of the defendant city adopted an ordinance repealing the ordinance of February 21, 1927, and providing that the office of assistant director of public works created thereby should cease to exist on December 31, 1929, and further providing that in December 31, 1929, and biennially thereafter, the mayor should appoint a deputy director of public works at an annual salary of $4,000, who should have charge and control of the engineering phases of each and every activity of the director of public works, and in case of the absence of disability of the latter, should act as director of public works. By an act approved March 1, 1923 the charter of the city of Bridgeport was amended as follows " The common council of the city of Bridgeport shall not abolish any existing office or reduce the rank or salary of any officer in said city, provided in the event any vacancy occurs in any office the common council may abolish such office or reduce the salary provided for the officer occupying any such office, and also provided any officer may be removed for cause subject to the provisions of the charter." 19 Sp. Laws, p. 36. The defendant refused to permit the plaintiff to perform the duties of assistant director of public works during the month of January, 1930 though he was ready, able, and willing to do so, and the plaintiff brings this action to recover the salary claimed to be due him as such assistant director of public works for the month of January, 1930. His right of recovery, under the theory of the complaint, depends upon whether, during the month of January, 1930, he was the incumbent of an " existing office" within the intendment of the charter amendment of March 1, 1923, and the questions upon which our advice is asked (somewhat condensed from the record) are as follows:

1. Is the assistant directorship of public works created by the ordinance of February 21, 1927, an office within the intendment of the amendment of the charter approved March 1, 1923?

2. Was it an " existing office" on December 31 1929, within the intendment of such charter amendment?

3. Was it abolished by the ordinance of November 25, 1929?

4. Was the ordinance of February 21, 1927, a valid ordinance in force between January 1, 1930, and January 30, 1930?

Theodore E. Steiber, of Bridgeport, for plaintiff.

John A. Cornell, of Bridgeport, for defendant.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.

BANKS J. (after stating the facts as above).

Counsel for the city contend that the position of assistant director of public works, created by the ordinance of February 21, 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 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, 96 Conn. 555, 114 A. 679. Section 114 of the Charter (15 Sp. Laws, p. 538) provides that he shall employ such assistants as may be necessary whose compensation shall be fixed by the common council. The defendant's contention is that the plaintiff is merely one of such assistants employed by the director whose compensation has been fixed by the common council, and that his position as an employee does not differ from that held to be occupied by the superintendent of bridges in Burrell v. Bridgeport, supra. In that case the common council passed an ordinance empowering the director of public works to appoint a superintendent of bridges at $85 a month. It did not appear that the duties of the superintendent were in any way regulated or controlled by the ordinance, nor that any term of office was fixed. We held that the common council had not attempted to create an office, but merely to determine the salary to be paid to the chief helper of the director of public works. State ex rel. Neal v. Brethauer, 83 Conn. 143, 75 A. 705, was another case in which an assistant to the director of public works of New Haven, known as an " examiner of records," was held to be a mere employee as distinguished from a public officer. The position was a clerical one, the duties of which were matters of administrative detail determined upon from time to time by the director, and existed only at the will of the director. Here the position held by the plaintiff was not only created by the common council with a fixed tenure of office, but the ordinance provides that its incumbent " in the absence of the director shall perform all the duties of said director." He is thus invested with all the authority of the director which is a portion of the sovereign authority with reference to matters within his control. A closely analogous case, and one which is controlling upon this question, is that of State ex rel. Stage v. Mackie, 82 Conn. 398, 74 A. 759, 26 L.R.A. (N. S.) 660. The charter of the city of Waterbury provided that the board of...