Richmond v. Village of Lodi

277 N.W. 620, 227 Wis. 23, 1938 Wisc. LEXIS 58

Opinion

Fairchild, J.

Sec. 66.06 (10) (a), Stats. 1931, creates the position of manager of a public utility owned by a village, city, or town, and provides without qualification as to time or term that the position be filled by appointment. The operation of a public utility by a village being proprietary, plaintiff suggests the application of a rule to permit the making of a contract of hire by the commission, but the appointment of a manager for the utility is a governmental act. The management, as between itself and the village, sustains a relation described as governmental, even though in the relations of the utility with others, its character is proprietary. Springer v. Philippine Islands, 277 U. S. 189, 203, 48 Sup. Ct. 480, 482, 72 L. Ed. 845.

The commission is authorized to appoint the manager and fix his compensation. The word “appoint” completely expresses the power of the utility commission as to the manager’s tenure. Under such provisions, the power to remove at pleasure is implied. State ex rel. Wagner v. Dahl, 140 Wis. 301, 303, 122 N. W. 748; Ekern v. McGovern, 154 Wis. 157, 244, 142 N. W. 595, citing Throop, Public Officers, § 354; Burnap v. United States, 252 U. S. 512, 515, 40 Sup. Ct. 374, 375, 64 L. Ed. 692; Wright v. Gamble, 136 Ga. 376, 71 S. E. 795; State v. Archibald, 5 N. D. 359, 66 N. W. 234. The utility commission cannot surrender its power of removal at any time, reposed in it by the legislature, by appointing or by making a contract with plaintiff for a definite term. Gillan v. Board of Regents of Normal Schools, 88 Wis. 7, 58 N. W. 1042; Wright v. Gamble, supra; State v. Archibald, supra.

By the Court. — Order affirmed.