§ 409 (217). Duration of Official Term; Power to hold over; English Statutes and Decisions. It was a settled rule of law respecting the old corporations in England that the office of the mayor or other head officer was annual, and absolutely expired at the end of the year; and that, without an express clause in the charter, he could not hold over until his successor was provided. The right, in such case, to hold over did not exist by implication, and was not an incident to the office. In some charters, however, it was in terms provided that the mayor or other chief officer, though elected for a year, should hold until his successor was chosen. When this right People v. Simonson, 64 N. Y. App. Div. 312. But this rule does not apply in a case where it is alleged that the removing power had knowledge that the officer was a veteran, and made the removal solely for the purpose of permitting the appointment of some other person in the veteran's place. People v. Clausen, 50 N. Y. App. Div. 324. Or where he has, immediately on removal, given notice of his standing as a veteran and demanded reinstatement. Matter of Stutzbach v. Coler, 168 N. Y. 416, aff'g 62 N. Y. App. Div. 219. The status and rights of a veteran illegally removed from his position are determined by the act in force at the time of removal, and are not affected by subsequent statutes. People v. Brady, 49 N. Y. App. Div. 238. Under the provision of the New York Constitution relating to the civil service that veterans shall be preferred in appointment "without regard to their standing on any list from which such appointment may be made," and of the civil service law that they shall have a similar preference "provided their qualifications and fitness shall have been ascertained as provided in this act, and the rules and regulations in pursuance thereof," a veteran is not entitled to mandamus to compel his appointment or employment as a laborer, a position to which the requirements of the civil service law are not applicable, and for which his qualifications and fitness have not been ascertained pursuant thereto. Sweet v. Partridge, 66 N. Y. App. Div. 309. In New York, it is provided by statute, that a refusal to allow the preference provided to any honorably discharged veteran, or a reduction of his compensation intended to bring about his resignation, shall give a right of action therefor to recover damages. Under this statute, the action for damages does not lie until the veteran has resorted to mandamus to compel restoration of his salary or to enforce his right to the preference. Hilton v. Cram, 112 N. Y. App. Div. 35. But if after his wrongful discharge his reinstatement has become impossible because the office has been abolished by the transfer of the control and management of the municipal institution where he was employed to an incorporated society, his remedy by mandamus is unavailing, and he can maintain an action for damages, without attempting to enforce his reinstatement. Bean v. Clausem, 113 N. Y. App. Div. 129. An action brought under this statute does not abate by the death of the veteran,. and it may be continued by his representative. Burke v. Holtzmann, 117 N. Y. App. Div. 292. The fact that the defendant in such action promised to again give the veteran work on the city streets excuses him from seeking other employment, and his failure to do so does not affect the measure of his recovery. Burke v. Holtzmann, 117 N. Y. App. Div. 292. Counsel fees expended by a veteran in procuring his reinstatement after a wrongful discharge are not recoverable by him "as damages as for an act wrongfully done" under the express provisions of a statute, giving a cause of action therefor against the person wrongfully removing him. Fallon v. Wright, 82 N. Y. App. Div. 193. i Rex v. Atkins, 3 Mod. 3, 12; Rex v. Hearle, 1 Str. 627; Mayor of Durham's Case, 1 Sid. 33; Rex v. Thornton 4 East, 308; Foot v. Prowse, 1 Str. 625; s. c. 3 Bro. P. C. 169; Willc. 293; Glover, 173. Ib.; Rex v. Phillips, 1 Str. 394. existed, it was frequently abused, by neglecting to hold an election on the charter day, by which means the officer continued his term. It was this abuse that gave rise to the Statute of Anne, which enacted "that no person in such annual office for one whole year should be capable of being chosen into the same office for the year immediately ensuing," and imposed a fine upon every such officer who "should voluntarily and unlawfully obstruct and prevent the choosing of another person to succeed into such office at the time appointed for making another choice." Under the Municipal Corporations Act the provision is that the mayor shall be elected each year, at the meeting fixed for the ninth of November, and shall "continue in his office for one whole year," 2 and by an amendment, until his successor shall have accepted the office of mayor, and made and subscribed the requisite oath; and subsequently the Statute of Anne above mentioned was repealed, as being no longer necessary.* 3 5 1 § 410 (218). Same Subject. At common law, the office of an alderman, jurat, capital burgess, or other member of a select body, is a franchise for life, though by prescription or charter it may be limited to a definite period, but the office was so much in the nature of a freehold that there was an implied right to hold over, unless it was otherwise provided. So with respect to recorder, town clerk, and the like officers, the duration of the office depended upon the particular charter, but presumptively it was not limited, and their offices were so much in the nature of a freehold that if they were "eligible for a year," and were constituted in general terms, they did not expire with the year, but the possessors were entitled to hold over until others were elected. But it was considered that if they were "eligible for a year only," the office ipso facto determined on the expiration of a year." § 411 (219). American Doctrine; Right to hold over. - In this country, however, a public office is not considered as being in the nature of a grant or contract, and the officer, as against the public, has no freehold or property of that nature in the office, although he may have a legal right to execute its duties and to its emoluments; and it is almost an invariable provision of law that all officers shall 19 Anne, chap. xx. § 8. 2 5 and 6 Wm. IV. chap. lxxvi. § 49; ante, § 53, and notes; Reg. v. McGowan, 11 Ad. & E. 869. * 6 and 7 Wm. IV. chap. cv. § 4. 3 and 4 Vict. chap. xlvii. Rex v. Doncaster, 2 Ld. Raym. 1564; Foot v. Prowse, 1 Str. 625. • Willc. 296, pl. 766; Reg. v. Durham, 10 Mod. 146, 147; Dighton's Case, 1 Vent. 82. 717 be elected or appointed for a fixed and definite period. To guard against lapses, sometimes unavoidable, the provision is almost always made in terms that the officer shall hold until his successor is elected and qualified. But even without such a provision, the American courts have not adopted the strict rule of the English corporations which disables the mayor or chief officer from holding beyond the charter or election day, but rather the analogy of the other corporate officers who hold over until their successors are elected, unless the legislative intent to the contrary be manifested.' Thus in Vermont People v. Runkel, 9 Johns. (N. Y.) capable of possession, and the law 147; Slee v. Bloom, 5 Johns. Ch. 366, affords adequate redress when the 378; 2 Kent Com. 238; Kelsey v. enjoyment of it is wrongfully preWright, 1 Root (Conn.), 83; Smith v. vented. 3 Kent, 362, 454; 2 Ala. 31. But Natchez Steamboat Co., 1 How. (Miss.) The same doctrine is recognized in 479; Lynch v. Lafland, 4 Coldw. (Tenn.) Dodd v. Weaver, 2 Sneed, 353. 96; South Bay, &c. Co. v. Gray, 30 the right to the office does not entitle Me. 547; Elmendorf v. Mayor, &c. of the officer to the compensation as New York, 25 Wend. (N. Y.) 693; under a contract; he takes it subject State v. Wilson, 12 Lea (Tenn.), 246, to the authority of the creating power and other Tennessee cases cited infra; to modify the compensation or to Haynes v. People v. Oulton, 28 Cal. 44; People v. discontinue the office. Blair, 82 Ill. App. 570; State v. Harri- The State, 3 Humph. 480; Hoke v. son, 113 Ind. 434, 440, citing text; Henderson, 4 Dev. 1. With this qualiState v. Menaugh, 151 Ind. 260, 273; fication the officer is entitled to the Bunker v. Gouldsboro, 81 Me. 188, 194, office, and to its emoluments, and to citing text; Thomas v. Owens, 4 Md. redress for interference with it his In Maloney y. Collier, 189, 221; Robb v. Carter, 65 Md. 321; rights. . . Lynn v. Cumberland, 77 Md. 449, 454; 112 Tenn. 100, it is said: 'An office is Ash v. McVey, 85 Md. 119, 130; Ijams an incorporeal right, and consists in v. Duvall, 85 Md. 252, 262; State v. the right to execute a public trust, and Perkins, 139 Mo. 106, 115, citing text; to take the emoluments belonging to State v. Lund, 167 Mo. 228, 234, citing it, and an injury to this right is an intext; Pratt v. Swan, 16 Utah, 483; jury to a private right, for which there See ought to be a remedy.' In Hoke v. State v. Daggett, 28 Wash. 1, 16. also State v. Seay, 64 Mo. 89; Territory Henderson, 4 Dev. 1, cited in the case of Memphis v. Woodward, supra, after v. Stokes, 2 N. Mex. 63. admitting that the legislature might abolish offices or reduce emoluments, the court continued: Yet it is quite a different proposition that, although the office be continued, the officer may be discharged at pleasure, and his office given to another. The office may be so abolished, because the legislature The common esteem it unnecessary. In Malone v. Williams, 118 Tenn. 390, 103 S. W. Rep. 798, the Supreme Court of Tennessee, in holding that the legislature could not remove officers of a city without abolishing their offices, referring to previous cases in the same State and elsewhere as to the nature of public offices and the rights of officers, says: "In Memphis v. Woodward, 12 Heisk. 499, the following weal is promoted by that law; at excerpt from Wammack v. Holloway, least, it is the apparent object, and 2 Ala. 31, was cited approvingly must be deemed to be the real one. (12 Heisk. 501): 'An office is as much a species of property as anything which is capable of being held or owned, and to deprive one of, or unjustly withhold, is an injury which the law can redress, in a manner as ample as it can any other wrong.' In the same case the Chief Justice said: "The right to exercise a public office is a species of property, equally with any other thing But while the office remains, it is not possible that the public interest can be concerned in the question who performs the services incidental to it. The sole concern of the community is that they should be performed, and well performed, by somebody; that they should be done by one particular person more than by another is not therefore a matter of expediency, in it is held there being no statute to the contrary, and such having been the practice that school officers elected at the annual meeting hold over until others are elected at another annual meeting, whether more or less than a year from the time of their election.' any sense; and hence it cannot be the subject of legislation that one man, who has the faith of the public pledged to him that he should have the employment for a certain term, and who has, upon that faith, entered upon the employment and faithfully executed, should be deprived of it, and supplanted by another man, who is to do and can do the community no other services than those already in the course of performance by the former.' The conclusion that an office could not be taken from one man and the same office given to another by legislation, was based upon the ground that this would be a judicial determination." S. P. Dodd v. Weaver, 2 Sneed (Tenn.), 353; Moore v. Sharp, 98 Tenn. 65; Nelson v. Sneed, 112 Tenn. 48. As to power of legislature over offices and officers, see ante, chap. iv.; Index, Office and Officers; Ordinances. In New York, it has been questioned whether the rule stated in the text as to holding over is of universal and general application to all officers. In People v. Bull, 46 N. Y. 57, 65, Folger, J., said: "The case of People v. Oulton, 28 Cal. 44, is cited to us to show that though the defendant might not hold the office by virtue of the act of 1866, he still was lawfully an incumbent of it as holding over until a successor should be duly elected and qualified. That was the case of a person claiming the office of State librarian, a ministerial office, to which he was, in the first instance, appointed for the term of four years. It is there claimed to be a rule of the common law that such an officer, at the expiration of his term, may hold over until a successor is duly appointed and has qualified. We are not prepared to assent to the conclusion there arrived at as one of universal application. The authorities cited to sustain it do not fully bear it out. It is to be questioned whether they go further than that one holding an office the incumbent of which is, by its tenure, to be annually or periodically appointed or elected, and, with no restrictive provision as to the term, may hold over as stated. In Philips v. Wickham, 1 Paige, 590, 594, the chancellor says: 'There are undoubtedly some common-law officers who are to be elected or appointed periodically, but who, from the necessity of the case, continue to exercise their functions until others are elected or appointed to fill their places. I am not aware,' he continues, of any general principle of the common law which authorizes all civil or corporate officers to hold over after the expiration of the time for which they were elected until their places are supplied by others.' These remarks of his were, to be sure, not upon a point which he considered necessary to be passed upon in the disposition of the case before him. But they induce hesitation in adopting the conclusion arrived at in the case cited to us. The more especially as the court there (28 Cal. 44) expressly declines to be understood as holding that such a rule extends to judicial officers." When a statute provides that the term of a police officer shall be four years, and that at the expiration thereof, he shall if otherwise qualified, “be preferred by the board in making new appointments, his right to a reappointment is not absolute, but rests in the discretion of the board, and that discretion is not subject to review by the courts." State v. Hawes, 177 Mo. 360. Chandler v. Bradish, 23 Vt. 416. "The better opinion," says Shaw, C. J., arguendo, in Overseers of Poor, &c. of Boston v. Sears, 22 Pick. Mass. 122, 130, "is that town officers annually chosen hold their offices until others are chosen and qualified in their place.' School District in Stoughton v. Atherton, 12 Met. (Mass.) 105; Dow v. Bullock, 13 Gray (Mass.), 136. So in Illinois. People v. Fairbury Tro., 51 Ill. 149. So in Connecticut, an officer elected for "the year ensuing" is, in the absence of any other restrictive provision, entitled to hold beyond the year, and until he is superseded by the election of another person in his place. McCall v. Byram Manuf. Co., 6 Conn. 428, where the authorities are reviewed and commented on by Hosmer, C. J.; S. P. Cong. Soc. of Bethany &c. v. Sperry, 10 Conn. 200; State v. Fagan, 42 Conn. § 412 (220). Holding over. The law on the subject of holding over by corporate officers has been thus stated by a learned American judge: "Where, in the charter or organic law of a corporation, there is an express or implied restriction upon the time of holding office, as that the officers shall be annually elected on a particular day, and that they shall hold from one charter (election) day until the next, or that they shall be elected 'for the year ensuing only,' in such case they cannot hold over beyond the next election day or the end of the year." "But where, by the Constitution of the corporation, the officers are elected for a term, and until their successors are elected and qualified, or where they are elected 'for the year ensuing,' 1 32; Wier v. Bush, 4 Litt. (Ky.) 429, 433. Where, by statute, an officer holds for a given term, and "until his successor is elected and qualified," he continues in office until his successor is duly elected and qualified, though this (from failure to elect, or from other causes) be after the expiration of the term. Stewart v. State, 4 Ind. 396; Tuley v. State, 1 Ind. 500, 515; Lawhorne, In re, 18 Gratt. (Va.) 85; Commonwealth v. Hanley, 9 Pa. St. 513; Commonwealth v. O'Neal, 203 Pa. 132; State v. Harrison, 113 Ind. 434; People v. Fairbury, 51 Ill. 149. For the rule when officers resign to avoid service of process, see post, chapter on Mandamus (§§ 861c, 861d of 4th ed.). In Missouri, it has been declared that an officer who has served his full term and holds over thereafter is a mere locum tenens, a tenant at will, who can be removed without notice and without charges preferred, at the pleasure of the executive, and the appointment of a successor accomplishes his removal. State v. Stonestreet, 99 Mo. 361, 376; State v. Hawes, 177 Mo. 360, 378. council by providing that they should be elected for a specified term, "and no longer," and that their seats should be vacated at the end of such term, they cannot hold over, and their action, after the time thus fixed, is void, and does not bind the corporation. Louisville v. Higdon, 2 Met. (Ky.) 526. When the law is silent as to the term, but requires an election to be held every two years, an officer holds over until his successor is provided. Cordiell v. Frizzell, 1 Nev. 130. A statutory provision that officers should hold their offices "for two years, unless sooner removed," held to be equivalent to providing that they should hold for two years only, and to preclude any right to hold over. State v. Lund, 167 Mo. 228; State v. Beardsley, 13 Utah, 502. When the Constitution fixes the term of office at "not exceeding three years,' the term cannot be extended beyond the fixed and limited duration by a statutory provision that officers shall continue in office until their successors are elected or appointed and qualified. State v. Brewster, 44 Ohio St. 589. In People v. Campbell, 138 Cal. 11, where Tuley v. State, 1 Ind. (Cart.) 500, the Constitution fixed the term of 502, per Perkins, J.; King v. Mayor, &c. judges at "six years from and after of London, 6 Vin. Abr. 296; Corpo- the first Monday of January next sucration of Banbury, 10 Mod. 346; Rex v. ceeding their election," the court held Pasmore, 3 Term R. 241; 6 Petersd. that this language necessarily implied Abr. 738. But whether a provision a fixed and definite term of six years, merely that an officer shall "be annu- that it was not within the power of ally elected on a particular day" is an the legislature to change the term; and implied restriction that he shall not that a statute requiring officers to conhold over, see the cases in Vermont, tinue to hold their offices until their Massachusetts, New York, Illinois, and successors should qualify, if construed Connecticut, above cited. The weight to apply to the judicial offices in quesof authority in this country is the other tion, added an additional, contingent, way. Where a city charter gave the and defeasible term to the original mayor power to hold until his successor fixed term, and therefore had was elected and qualified, but denied application. this power to the members of the city no |