(108 A.)

ant's application. Any claims of harmful error, which our practice left open for the defendant to make when he took his appeal, was accordingly limited to such as related to the change in phraseology of the judgment file made by the July order.

[2] It is therefore essential that the appellant, as the first step in the prosecution of his appeal, should show that the inserted words wrought a material change in the import of the judgment file. If they did not, the defendant was not harmed, and has no cause of complaint. It would appear that they were inserted for the purpose of giving greater certainty to the language of the judgment file. But assuming that they accomplished that end, as they undoubtedly did, it by no means follows that the purport and effect of the amended language differ from that of the unamended as it would be construed. In fact, increase of certainty implies the absence of material change rather than otherwise, and evidently, judging by the court's memorandum, it looked upon the modification it made as not altering the meaning and effect of the judgment.

On December 8, 1916, the superior court in New Haven county granted to the plaintiff a divorce from the defendant, and awarded to her the care, custody, and education of a minor child of their marriage. It also ordered that the defendant pay to the plaintiff the sum of $6,000 in payments of $2,000 on March 1, 1917, and $1,000 on the 1st day of March in each succeeding year until the $6,000 should be fully paid, and furthermore, to quote the language of the judgment file, that he "pay to the plaintiff from his income the sum of $15 per week during her life as alimony for the plaintiff and support for the child with stay of execution until the day after the respective dates when said payments are to be made." The $6,000 having been paid, the defendant in April, 1919, made application that the judgment be modified by striking out from the passage above quoted the words "the day after the respective dates when said payments are to be made," and substitute in lieu thereof the words "said sum of $6,000 has been fully paid." This motion was denied on April 22, 1919. Thereupon the plaintiff filed a motion that the judgment file be made certain by adding to What is the fact of the situation before us? the quoted words the words "including the The inserted words remove from the lanweekly payments." On June 21, 1919, the guage of the order as originally framed any court filed a memorandum of decision con- possibility of ambiguity that might be atcerning its action upon the defendant's ap-tributed to it, and makes it absolutely cerplication, in which it was stated that

The court was "of the opinion that the plaintiff's contention to the effect that the attachment in this divorce action is effective to protect the plaintiff as to any pecuniary allowances made to her by way of alimony should not be overruled by the court's making the modification applied for, in other words, that the terms of the judgment, in so far as it recognized the continuance of an attachment, if at all, should not be changed upon such an application so as to apparently affect the attachment."

On July 3, 1919, it filed another memorandum directing that the judgment, as originally rendered, should stand except that the words "annual and weekly" be inserted before the word "payments" in its last line. On the same day the modification was formally entered up, and on August 30th the

appeal was filed.

Omar W. Platt, of Milford, for appellant. Seymour C. Loomis, of New Haven, for appellee.

tain that the "said payments" referred to include all those ordered to be made, whether annual or weekly. Unamended, the order was doubtless less definite and precise than it is in its present shape; but, while that may be so, there can be no reasonable doubt that its meaning and intent as first framed has remained unchanged. Its language, construed according to its ordinary and naturalmeaning, leads directly to that conclusion. "Said payments," as used in the original, as appropriately refers to and includes the one class of payments, to wit, the weekly, as the other, the yearly.

But that is by no means all. Neither the original nor the amended order purports to define either the extent of the lien obtained through the attachment made or the protec tion which the plaintiff might derive from it. The utmost that either purports to do is to prescribe a stay of execution. What authority existed for that action we have no occasion to inquire. Our present interest is confined to the matter of the existence of an atPRENTICE, C. J. (after stating the facts tachment lien covering the payments ordered. as above). [1] This appeal is taken from Whatever virtue the attachment made when the action of the court on July 3, 1919, where the divorce proceeding was begun possessed, by the judgment rendered in 1916 was in as providing security for the satisfaction of terms modified by the insertion of the words the judgment which the plaintiff therein "annual and weekly" before the word "payments" in its last line. Such it was in form, and such in legal effect it must, of necessity, be regarded. The original judgment had long since passed beyond the reach of an appeal when this one was taken. So also had the denial on April 22, 1919, of the defend108 A.-51

might obtain, was derived from our statutes authorizing and governing them, and not at all from the authority of the court having cognizance of the action. It had no original or inherent jurisdiction over that matter which is one of legislative concern, and none had been conferred upon it. Whether or not,

17 Sp. Laws, pt. 2, p. 1059, providing In June, 1917, pursuant to the provisions that the "Board of Water Commissioners of of this act, the appellant was appointed the City of Norwich may appoint a superintendent of waterworks of said city, and may fill a vacancy at any time thereafter occurring in said office," held to create the office of superintendent of waterworks, and not merely to authorize board of water commissioners to

(108 A.)

in the field. During all this time also the duties of the president of the board as defined by the charter have been "the supervision, care and management" of the waterworks. While the court of common council could have imposed upon the president other duties connected with the waterworks, it does not appear that this power has been exercised.

"that the office or position of the superin- [ oversight and superintendence of all matters tendent of waterworks be and the same is hereby abolished," and caused a copy of said resolution to be mailed to the appellant on June 29, 1918. The appeal to the judge of the superior court is based upon the claimed invalidity of the vote of June 28, 1918, and the claim that in effect this action amounted to a removal of the appellant from his office without hearing and without cause, and contrary to the provisions of the act recited above.

It is substantially agreed that the specific question is, Did the Legislature, by this act, create the office of superintendent of waterworks, or did the act merely authorize the creation of the office by the board of water commissioners? If the Legislature created the office, then the board of water commissioners has no power to abolish it, or to remove the occupant of the office except for cause and after full hearing. By whom then was the office created?

those of the president was analogous to that between the duties of mill superintendent and those of general manager, as those terms are understood in a manufacturing business. The services of this sort required and justified the appointment of some one to perform them, under whatever name, would appear both from the character of the work and from the finding that this had been the uniform practice since the waterworks were undertaken about 1867. The authority of the board to appoint and employ a superintendent with these powers has not, so far as appears, ever been questioned, nor would it seem that it could well be questioned. It is an implied power necessary to the accomplishment of the purposes of the board. It involves a hiring, but not the creation of an office.

When the act in question was passed appellant was acting in the capacity of superintendent by appointment of the board for one year from July 1, 1916, and with the duties as defined by the resolution of the board, and in detail as stated above. Although the duties of the president prescribed by charter, and the duties of the superintendent, prescribed by resolution of the board, might to some extent overlap, yet the duties of the superintendent were directed to the management and direction of the physical work attendant upon the conduct of the waterworks, and were done under the Prior to the act in question there was no direction of the board. The distinction legislative recognition of the office of super-between the duties of the superintendent and intendent of waterworks. It was the duty of the president of the water board "to devote so much of his time and attention as may be necessary to the supervision, care and management of said waterworks, and to such other duties connected with said waterworks as shall be assigned him by said court of common council." Charter, Special Laws 1871, page 200, § 83. Whatever powers the board of water commissioners had as to the creation of offices, if such they could properly be called, were implied from the general nature of the duties of the board and of its president. Manifestly, employés of various grades, skilled and unskilled, would or at times might be necessary for the construction, maintenance and operation of a system of waterworks for the city, and these the board would be authorized to employ as the necessary means of accomplishing the pur- The finding is silent as to any special conpose for which the board was created. And dition necessitating the legislation of 1917. so it appears in the finding that the board But the Legislature and not the court is the has annually appointed a superintendent, and judge of the policy and the necessity of its that since 1885 the duties of the superintend- action. We must assume that the Legislaent have been defined by resolution of the ture intended to accomplish some practical board as "the supervision and direction of all change in the legislation affecting the powers outside work pertaining to the waterworks of the water board; otherwise the act would of the city of Norwich as directed by the be pointless. The only change justifying legboard of water commissioners." The finding islative action which appears on the face of goes into detail as to what these duties in the act is to convert what had before been a fact were, and they may be summarized as matter of employment by the board into a supervision and direction of all work outside matter of appointment by the board to a the office of the water board pertaining to legally created office with a tenure lasting the waterworks, installation, and repair of until removal for cause, and with duties and meters, service pipes, and fixtures, keeping compensation to be determined by the board. time books of the field force, hiring and dis- That the act does not categorically create charging labor, keeping the field book of the office, and then provide how it shall be the board in which was written all needed filled, is not material. The word "office" facts concerning the reservoirs and water even need not appear, if the clear meaning of systems, estimating costs, having charge of the language used necessarily implies that guards and caretakers, instruction of fore- an office is created. 22 R. C. L. 421. Here, men, laying out of the work, and generally however, the act specifically refers to the

of the appointing power, and not to the creation of the office. Whether "may" in a statute is mandatory, directory, or permissive is often a question of difficulty.

position as an office. The board "may fill a [grammatically and logically to the exercise vacancy at any time thereafter occurring in said office." Such superintendent "shall hold office until removed for cause." The power of removal from an office is quite different from discharge from an employment. It may have seemed wise to the Legislature that a position of this practical importance, intimately related to the welfare of the city, requiring for the successful performance of its duties knowledge only to be gained by experience in the locality in which the works are located, and familiarity with the actual operation of the water 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 creation of the office with permanence of tenure and subject to removal only for cause.

[3] We assume, as too obvious to require argument, that the office of superintendent of waterworks is for the public interest and public good. The board of water commissioners is empowered to appoint a superintendent. The public interest and publc good require this appointment. In such case "may" is mandatory. This is stated as the settled law of both England and America in Board of Supervisers of Rock Island County v. United States, 4 Wall. 435, 18 L. Ed. 419. The act there under construction gave a board of supervisers power to lay a special tax. The language was "may, if deemed advisable." The court held that this language, though

Puble interest was the test there applied. In Lyon v. Rice, 41 Conn. 245, the language of the statute as to town meetings was:

selectmen shall deem it necessary or on appli"Special meetings may be convened when the cation of twenty inhabitants qualified to vote in town meeting."

The defendant contends that the act in permissive in form, was in fact peremptory. question is a delegation of power, that it does| not create the office, but gives the board power to create it, and that any office the board in its discretion can create it can also abolish. The latter part of this proposition may be conceded. State ex rel. Rylands v. Pinkerman, 63 Conn: 176, 28 Atl. 110, 22 L. R. A. 653; Mechem on Public Officers, § 466. Still the primary question remains, by whom was the office created? The defendant bases its argument upon the use of the word "may," the board "may appoint a superintendent of waterworks," and argues that the existence of the office depends upon the exercise of a merely permissive power of appointment; that no office is created until the board acts; that the office thus becomes a creation of the board, and therefore may be abolished by the board. If this were all the act means, it would have accomplished nothing of real importance, as shown by the history of the board's action with reference to the appointment of a superintendent.

[1] The defendant's claim ignores the rec ognized distinction 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 its existence upon whether it is in fact filled. This is clear from the much used expression, occurring also in the act under discussion, "vacancy in office." The same idea underlies the law as to officers de facto. State v. Carroll, 38 Conn. 449, 9 Am. Rep. 409; Childs v. State, 4 Okl. Cr. 474, 113 Pac. 545, 33 L. R. A. (N. S.) 563; Heard v. Elliott, 116 Tenn. 150, 92 S. W. 764.

[2] Undoubtedly the Legislature might have conferred upon the board the power to create the office, as well as the power of appointment. But its power was limited to the appointment and removal of the officer. State ex rel. Stage v. Mackie, 82 Conn. 398, 74 Atl. 759. The expressions in the act "may

It was held that this language imposed a duty to call a meeting upon presentation of the application. This case was followed in Cummings v. Looney, 89 Conn. 557, 95 Atl. 19. See, also, Gallup v. Smith, 59 Conn. 354, 22 Atl. 334, 12 L. R. A. 353. The authorities are numerous. 25 R. C. L. p. 770, 36 Cyc. p. 1160.

The board did in fact act and appoint a superintendent immediately after the approv al of the legislative act in question, and this appointee, who was the present appellant, thereupon became clothed with the rights conferred, and subject to the duties imposed by the act. Any other construction violates both the language of the act and its manifest purpose of securing fixity of tenure in an office of great practical importance.

[4] We therefore hold that by the act in question the Legislature created the office of superintendent of waterworks, and as a consquence the board of water commissioners had no power to abolish it. The attempted abolition of the office by the board was in effect an attempt to repeal an act of the Legislature, and accomplished an unlawful removal of the appellant, who had been properly appointed to an office created by the Legislature. Some minor questions have been discussed by counsel, but they become of no importance when it is once determined that the office was created by the Legislature, and not by the board of water commissioners.

The judgment of restoration was properly rendered upon the facts found. There is no error.

(108 A.)
between the intestate's widow and minor son.

(94 Conn. 303)
SLIWOWSKI v. NEW YORK, N. H. & H. R. No error.
CO.

(Supreme Court of Errors of Connecticut.
Jan. 29, 1920.)

1. MASTER AND SERVANT 127-RAILROAD

BOUND TO MAINTAIN COAL CHUTE IN PROP

ER CONDITION.

The defendant maintains in its railroad yard at Bridgeport a coal pocket, at which locomotives coming in from use on the road are supplied with coal before being placed in the engine house. This coal pocket is supplied with 14 chutes designed to discharge the coal from the pocket into the en

Where a rod used to brace a railroad's coal chute was dangerous to employés on pass-gine tenders. Each of these chutes is fastening engines unless held in place by a catch on the under side of the chute when not in use, the railroad, as an incident of its duty to furnish a safe place to work, was required to provide an adequate catch and to maintain it in proper condition.

-

2. PLEADING 406(7) — DEFENDANT AFTER GOING TO TRIAL ON MERITS CANNOT CLAIM THAT ALLEGATION IS TOO BROAD TO SUPPORT

FINDING.

ed to the frame of the coal pocket by a hinge in such a manner that its outer end can be raised and lowered; when not in use, the chute can be swung up until it is out of the way of passing engines; when in use, it is lowered until the outer end is in position above the tender to be filled. At the outer end, swinging from a ring, is a rod about 4 feet 4 inches long, which, when the chute is in use, is placed in a socket on the frame of the coal pocket in such a way as to brace the chute, and which, when not in use, should be held in place by a catch on the under side of the chute. These chutes are under the general supervision of the bridge department of the defendant and are inspected about once a month by its building supervisor. They are operated, however, by employés of the company called fuel handlers, whose duty it is to see to the coaling of the engines when placed in front of the particular chute then in use. In order to make their work easier, although the rules of the defendant forbade the practice, the fuel handlera were accustomed to hang to the outer end of the chutes pieces of old iron which were called by the defendant's employés "hangers." These would weigh in the neighborhood of 15 pounds, and would hang down about a foot or 18 inches from the end of the chute. If the chute after use was properly pushed up by the fuel handler, there would be no danger to any one upon a passing engine from One inference of fact may not be based up- it were properly secured and held by the these hangers; and if the rods used to brace

Defendant, after having gone to trial on the merits of the case without raising any question as to generality of allegation as to negligence, cannot complain that allegation is too broad to support finding.

3. MASTER AND SERVANT 276(7)-COURT'S
FINDING AS TO CAUSE OF RAILROAD EM-
PLOYÉ'S DEATH WARRANTED BY APPLICATION
OF DOCTRINE OF RES IPSA LOQUITUR TO FACTS

FOUND BY INFERENCE.

In an action against a railroad under federal Employers' Liability Act 1 for death of a fuel handler on an engine passing a coal chute braced by a rod which was dangerous when not held in place by a catch, facts found by inference held to warrant court's conclusion that the injury was due to a blow from the rod under doctrine of res ipsa loquitur.

4. NEGLIGENCE 121(1)-DOCTRINE OF RES IPSA LOQUITUR DEFINED.

The doctrine of res ipsa loquitur is that in certain cases the court may from the proven facts infer the ultimate fact of negligence.

5. EVIDENCE

54-ONE INFERENCE NOT TO BE BASED ON ANOTHER INFERENCE.

on another inference of fact.

There is no rule of law that forbids the raising of one inference upon facts whose determination is the result of other inferences; such rule being one of caution.

Appeal from Superior Court, Fairfield County; Howard J. Curtis, Judge.

catches designed for them, there would be no danger from them. But if a chute were not pushed up a sufficient distance, the hangers would be in a position where any one riding upon the engine tender might strike against them; and the same is true of the rods, if the catches should fail to hold them.

Plaintiff's decedent was employed by the defendant as one of the fuel handlers working at this coal pocket. On the night of July 3, 1917, or early the next morning, he sufferAction by M. Walter Sliwowski against the ed an injury while in the performance of his New York, New Haven & Hartford Railroad duties, causing a rupture of the kidney, from Company to recover damages for negligently which he subsequently died. Apparently no causing the death of the plaintiff's intestate, one saw the accident, and the only evidence brought to the superior court in Fairfield as to the manner of its occurrence consists of county. Facts found and judgment rendered statements made by him before his death. for the plaintiff to recover $4,521, apportioned On their face these statements point very under the federal Employers' Liability Act strongly to the hangers as the cause of the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
1 U. S. Comp. St. §§ 8657-8665.