Norwich bulletin., 1919-02-01
JUDGE REEDS DECISION
SUSTAINS RGRNAP SUIT

Judge Joel H. Reed OF the superior
court handed down decision on Fri /
| day in the matter of Edwin L. Bur
nap VS.. Board of Water Commission
ers of Norwich, sustaining Mr.. Bur- |
nap, who has contested the action of |
| the water commissioners in ouSting him |
as superintendent of the water depart |
ment last July by abolishing the Office |
of superintendent.
The judge gives his decision on the !
ground that the Office Of superintend- I
ent was established by act of the leg |
islature in May, 1917, and can only |
be abolished by act of legislature.
| Attorney Joseph 7. Tanning who |
was counsel for the water board said |
| on Friday that there was no doubt |
they would appeal to the supreme
coure They would have a week in
which to file notices Of appeal. The
appeal would act as stay Of execu-
ton and as it could not lie tried be-
| fore the Apri! term Of the supreme
| court, this meant there would be no
change in the office Of superintendent
for some time to come, even if they
finally lost their appeal.
The following was Judge Reeds
memorandum of decision
Memo, andum Of Decision,
The whole controversy in this case
seems to balance upon the answer to
the question as to who created the
office of superintendent Of water
works of the city of Norwich.
The brief of counsel fcI the ap-
pellees opens with the statement that
the board Of water commissioners
created the Office, and it is argued that
as the board was given authority to
create the Office it had the right to
abolish it.
The appellant, on the other hand,
claims that the Office was created by
the legislature. and eau therefore be
abolished only by legislative action.
Both these claims are based upon
an act concerning a superin endent of
water works of the city of Norwich,
passed by the general assembly. and
approved May Is. 1917. which act is
as follows:
The board Of water commissioners
4 of the city of Norwich may appoiE.
a superintendent of wafer works of
4 said city, and may fill a vacancy at
any time thereafter occUrcirg in said
! office. Said superintendent shall be
! under the direction of said board, and
shall hold office until removed for
4 cause by said board, after full hear
ing upon reasonable notice. Such
superintendent, when so removed may,
within thirty days after such removal
" lnpeai tnerefron to the superior court,
& or to a judge thereof. and said court
s empowered to hear and determine
ouch appeal. and such appeal shall be
n privileged in respect to its assign
4 :nent for trial before such court OF
Judge thereof, Said board shall fix
Il the salary of said superintendent
q when said appointment is made.
q it Is undoubtedly true, as claimed by
n he appellees, that the power to Gre
n ate an Office. unless oth>r provision is
4 made by the constitution is vested il
81 the legislative department OF the gov
81 eminent, which may delegate its pow,
II err to a municipal board or othe,
81 body. Also. that municipality. hav
n ing the power TO create an Office, Il
u the absence Of legislative restriction
a may abolish it. And that an offic
81 created ny ordinance can be abolished
n by ordinance.
u There is really no dispute abou
ES these principles, but only as to thei
5s application TO this case.
81 I think it is practically concede
IN that the authority which created thi
III office might abolish it, AMI that leave
M the only question. who created it?
"a If it was created by the legislator
IA it has never been abolished. for tn
II legislature has taken no action.
was not created by city ordinance
for there has been no such ordinanc,
- and none abolishins it. and RylanS
VS.. Pinl<erman. 6S Conn. 176. has n
~. application. except by analogy.
it / think the claim of the appellant
O. right that the Office wa.5 created b
by the act Of May 16, 1917, ana that til
$ legislature only can abolish it. Tha
es act is practically an amendment to III
ne city charter
SIS = seems TO me that the appellee
III have assumed that the water commits
siouers created the Office because the
ia g 49,
he officer,
er Gut there is ? wide difference he
,ct tween creating vi office and havir
The power Of appointment
= An office is a legal entity and ma
rs e.-ist in fact. although It 10 witho,
q an Incumbent.
ny 7sd =
a think that was the case here be
Is fore the appointment was made
ne is quite true, as claimed by the ar
rl pelleos, that the board was not oblie
10 ed to fill the office. anil in that cas-
there would have been tho office witr
nd out any officer in it. T2ut when tr
lis office was Sled the powers of tt
board were exhausted, except SO 4
as provided by the act
ice The case IF Ford vs. FTai hor Con
'es misssioners. (Cal) % Pac. 27S seen
CIV too uncertain to he Of much authorit
II. here. The circumstances are not II
n same, and, so far as they are ana
Joyous. think the reasoning and cor
$50 clusion Of the majority opinion is III
sound.
y The very fact as stated bv one
the Judges in that case that the hal
nor commissioners could create hur
4 drS1 or a thousand coIlectorsllips
& Neutrality-suspicious., but could not aboIis
one. very likely had great influence
4 leading to the conclusion reached
the majority opinion the judge basir
his reasons en- the ground of II
statute being unconstitutional as
I delegation Of powers to create the o
fee.
In rendering this decision I Apr,
I ciate the somewhat unpleasant stu;
B ton of the board of water commits
sioners and the city Of Norwich
having two Offices with practically Il
same duties attached to each, as Il
B president of the board OF water con
missioners and superintendent of W;
ter works. But it is situation 4
which I am not responsible and
must be dealt with as j: actually e:
lists.
7 have tried to f1nd way. in vie
Of this unnecessary duplication of Sc
vice to sustain the action Of Il
board in aholishing the office of supe
intendent, but have been unable TO
so consistently with the proper app
cation Of legal principles.
] think the legislature created {
office, and the situation win have
be dealt with through legislative a
ton.
MI TY1Srr--a.~& l. ~-A~~~s =. &c.