Norwich bulletin., 1920-02-05

intendent and those of general man ager as those terms are understood in a manufacturing business. The au- thority of the board to appoint and employ a superintendent has not, .so far as appears, ever been questioned, nor would it seem it could well be questioned. It is an implifed power necessary to the accomplishment of the purposes of the board. It involves the hiring, but not the creation of an office. The finding is silent as to any special condition necessitating the leg islation of 1917.s But the legisla- ture and not the court is the judge of the policy and necessity of its action. We must assume that the legislature intended to accomplish some practi- cal change in the legislation affecting the powers of the water board, oth- erWiSe tfar act would be pointleSS. The only change justifying legislative ac- ton which appears on the face of the act is to convert what had before ben a matter of employment by the board into matter of appointment by the board to a legally created of flee with a tenure tasting until re- noval for cause. and all duties and compensation to be determined by the board. That the act does not catego- rically create the office and then pro- vide how it shall be filled, is not ma terial. The power of removal from an office is quite different from dis charge from an employment. It may have seemed wise to the legislature that a position of this practical inn portance intimately related to the well fare of the city, requiring for the successful performance of it's duties, knowledge only to be gained by expe- rience in the locality in which the works are located, and familiarity with the actual operation of the wa ter system should not be subject to the will of changing boards, or to the vicissitudes of local politics, and that the needs of the public would be better served by the legislative crea- ton of the office with performance of tenure and subject to removal only for cause.
 The defendant contends that the act in question is a delegation of pow CT; that it does not create the office, but gives the board power to create 1t. and that any office the board in it's discretion can create it can also abol- ish. The latter part of this propo- sition may be conceded. Still the primary question remains, by whom was the office created? The defendant bases it's argument upon the use of the word may" and argues that no office is created until the board acts,
 that the office thus becomes a crea-
 tion of the board and therefore may be abolished by the board Te de- fendant's claim ignores the recognized difference between an office and the | incumbency of an office. The office
 comes into existence by force of the
 act The officer is later appointed
 by the board. An office once created
 is a legal entity not depending for it's
 existence upon whether it is in fact filed Whether may in a statute
 is mandatory. directory or permissive
 is often a question of difficulty. We
 assume as too obvious to require ar gument that the office of superintend 1 ent of water works is for the upblic interest and public good. The board 1 ent of water works is for the public 1 to appoint a superintendent The pub l lie interest and public good requires i thIs appointment. In such case may
 is mandatory. This is stated as the settled law of both England ano : America.