State Ex Rel. Stage v. MacKie

Prentice, J. Quo warranto proceedings lie to prevent the usurpation of a public office or franchise. These were begun to try the title to a position attempted to be created *401 by an ordinance of the city of Waterbury, and attempted to be filled by the board of aldermen of the city. They must fail for the reason that there is no such office. To justify a resort to the extraordinary remedy here invoked, there must be an office legally authorized and constituted. State ex rel. Woodford v. North, 42 Conn. 79, 86 ; Commonwealth v. Dearborn, 15 Mass. 125 ; High on Extraordinary Legal Remedies, § 625. The position in question is one to which the ordinance creating it attempted to attach important powers and functions of government belonging to the sovereignty, and, therefore, was a public office as distinguished from a mere employment or agency resting on contract, and to which such powers and functions are not attached. Perkins v. New Haven, 53 Conn. 214, 215, 1 Atl. 825 ; Seymour v. Over-River School District, 53 Conn. 502, 509, 3 Atl. 552 ; State ex rel. Rylands v. Pinkerman, 63 Conn. 176, 182, 28 Atl. 110. “A public office is a right, authority and duty, created and conferred by law, by which ... an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public.” Mechem on Public Officers, § 1. “ It implies a delegation of a portion of the sovereign power to, and possession of it by the person filling the office.” Opinion of the Justices, 3 Greenleaf (Me.) 481, 482; Patton v. Board of Health, 127 Cal. 388, 394, 59 Pac. 702 ; United States v. Hartwell, 6 Wall. (U. S.) 385, 393. It is a trust conferred by public authority for a public purpose, and involving the exercise of the powers and duties of some portion of the sovereign power. Clark v. Easton, 146 Mass. 43, 45, 14 N. E. 795 ; Attorney General v. Drohan, 169 Mass. 534, 535, 48 N. E. 279 ; People v. Kipley, 171 Ill. 44, 71, 49 N. E. 229. Such being the nature of a public office, it is apparent that its source must in this country be found in the sovereign authority speaking through constitution or statute. The creations of'the sovereign power cannot, in the ab *402 sence of a delegated authority, create one. High on Extraordinary Legal Remedies, § 626; State v. Spaulding, 102 Ia. 639, 647, 72 N. W. 288 ; Patton v. Board of Health, 127 Cal. 388, 393, 59 Pac. 702 ; Miller v. Warner, 42 N. Y. App. Div. 208, 209, 59 N. Y. Supp. 956 ; Commonwealth v. Swasey, 133 Mass. 538, 539. The source of the alleged office here in controversy is a city ordinance. The State had delegated to the city in its charter the power to provide for the appointment of a building inspector, and to prescribe his duties. 12 Special Laws, p. 438, § 21. It had not delegated the power to provide for the appointment of a deputy building inspector, and to prescribe his duties. The city was without inherent power to create such a public position and to endow it with the jurisdiction and authority attempted to be conferred. No such power was impliedly granted by the charter provision referred to. The right to create one office does not imply the right to create two. The right to provide for the appointment of an officer does not involve or imply the right to provide for substitutes and alternates ad libitum. The right to prescribe the power and duties of a designated official, and to endow him with that power, does not carry with it the right to endow several persons in the alternative with that power. The charter provision giving the board power to provide for the appointment or election of employees and to prescribe their duties and compensation, was also inadequate as a conferment of authority .to create public offices, to provide for the choice of incumbents, and to endow those incumbents with portions of the sovereign power at pleasure. This provision was limited in its application to employees, and its language was chosen to clearly indicate that fact. It is scarcely conceivable that the State should have delegated to one of its creations its sovereign power in any such wholesale way as to enable the latter to create such offices as it pleased, and attach *403 to them the exercise of such portions of the sovereign power as it pleased, and thus surrender to its creature its power of direction and dictation; and the charter provision referred to was too carefully guarded in its language to give countenance to such a contention. It might possibly be a wise precaution to provide for the contingency of the death, absence or disability of the single official for which the sovereign authority has provided, but that is a matter for which that authority is alone qualified to deal. It has not done so save as the Special Act of 1905 concerned the matter. Whatever may have been the effect of that Act during the lifetime of the then incumbent, it could not have amounted to a ratification of the city ordinance, as permanent legislation, creating the office of deputy or assistant building inspector, and defining the powers and duties attached to it. There is error, the judgment is set aside, and the cause remanded for the rendition of a judgment dismissing the information. In this opinion the other judges concurred.