State Ex Rel. McDermott v. Wilkinson , 88 Conn. 300 ( 1914 )

If the relator's claim to restoration to duty rests upon a solid foundation, it must be for the reason either that his attempted removal by the selectmen was an unauthorized act, or that such attempted removal was rendered nugatory by the subsequent vote of the town meeting. If that vote had any legal consequence, it must have been in making of no effect the action of the selectmen. Clearly the town does not possess the power of appointment, and we do not understand that such power is claimed for it. If the relator's dismissal became effective, the town meeting was powerless to put him back into the position from which he had been removed. The question before us is, therefore, one solely of removal. It presents, however, two quite independent aspects, one as to the initial power of the selectmen to remove him, and the other as to the veto power of the town meeting over their act of removal.

The answer to the questions thus presented must be found in the provisions of chapter 334 of the Special Laws of 1911, and especially of § 12 of that legislation, and in what may have been done under that portion of the section which relates to the organization and maintenance of a fire department in the first taxation district.

The Act provides a system of local government for the town of Orange, and incidentally for the first taxation district within the town formerly, or for the most part, under a borough government discontinued, which is unusual in its character and scope, and quite apart from the familiar methods of local government. The board of selectmen is retained and the powers usually conferred upon its members as town officials are not withheld; but here the similarity to the customary town system ends. The board is invested with large powers, for the most part enumerated in § 12, covering a great variety of subjects, touching the affairs of the town as a whole and of a single district in it solely, and embracing both administration and legislation. The system established is essentially that of a commission form of government, the board of selectmen being made the commission, and endowed with substantially all the powers customarily conferred upon the warden and burgesses of boroughs. On the one hand the affairs of administration are committed to its charge, and on the other the power to make rules and regulations for local government in the nature of city ordinances and extending to the provision of fines and penalties is bestowed. Among the numerous provisions of § 12 is one that the board "shall organize and maintain a fire department in the first taxation district, provide apparatus therefor, and make all necessary rules and regulations for the control and discipline thereof." There is no other provision in the Act relating to the organization, personnel, or government of the department.

Touching the inquiry as to the competency of the selectmen's act of dismissal, it is to be observed that the relator makes no claim that he was appointed for a designated period unexpired, or that any term is prescribed for the position to which he was appointed. His claim of improper discharge by them rests solely upon the contention that a rule or regulation, duly adopted by a preceding board of selectmen for the government of the department, operated to vest the power of removal of its members elsewhere than in the board of selectmen, and to give him in effect a tenure of position during good behavior. This rule, recited in the return, is, in substance, that the chief of the department shall have the power to suspend any officer or member for insubordination, disorderly conduct, or neglect of duty; that such suspension shall be reported at once in writing to the board of fire commissioners; that this board shall give the suspended person a prompt hearing after notice; and that thereafter it may either dismiss the charges, or suspend, expel, or reduce in rank the accused.

The contention thus made in favor of the relator, as applied to the circumstances of the present case, involves the maintenance of two incidental propositions, to wit: (1) that the position which he held was one which the selectmen could not by a reorganization or rearrangement of duties dispense with at pleasure; and (2) that the relator was protected from removal therefrom except upon charges preferred by the chief, and for cause found after a hearing.

We read the Act, writ and return in vain to discover any indication that there has ever been such an organization of the fire department as that defined positions with assigned duties have been created, or that any position therein having a character of permanency has ever been created. For aught that appears the selectmen for the time being have proceeded, and left themselves free to proceed, to allot the work of the department as they thought best, and taken no action of a legislative character creating a fixed organization or establishing fixed positions, or limiting their powers to arrange and rearrange at will the working organization of the force employed and the distribution of the duties and labors attending the work to be done among those employed or to be employed. The allegation of the complaint is that the relator was "employed as engineer number 1 fire apparatus" and that he was unlawfully removed from "said occupation." The return repeats the same averment of employment, and adds that the selectmen, in the exercise of their power and duty under the Act, employed another person as a mechanician and assigned to him, among other duties, those which the relator had previously performed, and terminated his employment. Here is described a rearrangement and consolidation of duties performed by employees. In that rearrangement and consolidation the duties performed by the relator were transferred to another employee, and the necessity for his further employment ended. It is difficult to discover from what is before us a reasonable basis for the contention that the so-called position, which the relator says he filled, was entitled to be so dignified, at least in the sense of indicating that it was an independent, defined post in the established organization of the department as distinguished from a mere casual employment at duties which could be assigned at will to employees by those in authority.

But there is a broader justification of the act of the selectmen to be found in the authority which is vested in them. The duty of organizing and maintaining a fire department in the first district, imposed upon the selectmen of the town for the time being, is one which rests upon them as agents of the law. State ex rel. Rylands v.Pinkerman, 63 Conn. 176, 182, 28 A. 110. The imposition of this duty carried with it by necessary implication the power of selection of members of the department, in the absence of other provision therefor in the Act or in the rules and regulations adopted pursuant to it. No such other provision appears. "It is the common rule that where the power of appointment is conferred in general terms without restriction, the power of removal at discretion and at the will of the appointing power is implied, and always exists unless restricted and limited by some other provision of law." State ex rel.Reiley v. Chatfield, 71 Conn. 104, 112, 40 A. 922.

In the present case we discover no possible source of restriction or limitation upon this prima facie power of dismissal, unless one results, as the relator contends it does, from the regulation already recited touching proceedings after suspension. This regulation remains to be considered as bearing upon the tenure of occupancy of a place in the department. Reference is made in the regulation to a board of fire commissioners. What its position is in the scheme of local government, and what other duties or powers are theirs, the record does not disclose. Clearly we cannot assume for them anything beyond what the record shows, and that is confined to the one matter to which the rule relates. There is no suggestion that the general power of removal is given to them, or that removal can be accomplished only through proceedings instituted by suspension by the chief and resulting, after a hearing, in conviction of misconduct. Apparently the rule was adopted to meet a situation likely to arise in the enforcement of discipline in the department by the chief, and with no intention of restricting removals to those accomplished through its operation. Had there been a purpose to create for fire department employees a tenure of position during good behavior, it would not have been so blindly expressed, and this would not have been the sole provision to that end. The action of the selectmen was not in excess of their authority.

Our next inquiry relates to the legal effect of the vote of the town meeting purporting to override the action of the selectmen. The language of § 12, which reserves to the voters of the town the power to repeal or amend any order, rule, or regulation made by the selectmen, concludes a lengthy recital of powers, both legislative and administrative, conferred upon them. Clearly the power of review thus given does not extend to all administrative acts in their infinite variety. All such acts of the board may in a sense be said to partake of the nature of its orders. They are not, however, orders in the sense in which the word is here employed, as is apparent from the context. The word is used most frequently, perhaps, to describe a command or direction from some source of authority. It is, however, also used as synonymous with rule or regulation. Black's Law Dictionary (2d Ed.) 857.

The Act provides that, preliminary to the adoption of any order, rule, or regulation of a general public nature, public notice should be given and opportunity for a hearing afforded. Then follows the provision giving the voters of the town the right of review. The defendants contend that the right thus given is limited to those rules, regulations and orders whose adoption, after notice and opportunity for a hearing, had just been provided for, to wit: those of a general public nature, confined, perhaps, to those of a legislative character, or, at most, not extending beyond the directions of an administrative sort which involved a public policy or touched broadly the interests of the general public. We have no occasion to give an interpretation to the Act in this regard, further than to observe that the right of review plainly does not extend to purely administrative details, such as employment in or dismissal from the public service, or appointment to or removal from positions in that service.

The claim made by the relator, that the selectmen were bound to obey the directions of the town meeting as the command of their principal, is not well made. They were acting in the premises, as we have already had occasion to observe, as agents of the law and not of the town. The town meeting was without power to dictate their action, save as legislation may have conferred that power.

Our conclusion renders it unnecessary for us to consider several other questions which the appeal presents.

There is no error.

In this opinion the other judges concurred.