amended charter of that city enacted "that all offices created by the existing charter are hereby abolished and vacated, and the present occupants or incumbents shall cease to exercise the powers, duties, and functions thereof," and in the same act the same offices were substantially re-enacted under different names. The existing officers had been elected or appointed for fixed terms which had not yet expired. No power of removal of such officers had been reserved. The Supreme Court of Tennessee held that, although the legislature has the undoubted right to abolish an office no longer deemed necessary, and if it does so the right of the incumbent to hold the same necessarily ceases to exist because there is no office to hold, yet in the case of Memphis the offices had not been abolished, but continued under other names, and that the legislature had no power to legislate the incumbents out of office before their terms expired, while leaving the offices with their functions and powers under other names substantially unchanged. The general proposition was affirmed that the legislature in the case of officers with fixed terms could not remove them from office without abolishing their offices; that in the case before the court the mere legislative declaration that the offices were abolished, did not abolish them, as the same act continued the same functions and duties, and simply transferred the discharge of these functions and duties to other officers under different names. The court admitted that the right to the office does not entitle the officer to compensation under a contract, and that he takes subject to the right of the creating power to modify the compensation or to discontinue the office, but subject to this qualification the officer is entitled to the office and to its emoluments and to redress for interference with his rights.1

1 Malone v. Williams, 118 Tenn. 390, 103 S. W. Rep. 798, citing and reviewing previous cases in the same State and elsewhere to the same effect. In State v. Leonard, 86 Tenn. 485, the court held that an Act of 1887 simply changed the name of the office, leaving its duties intact, and devolved those duties upon a person other than the incumbent at the time, and did not in fact abolish the office, but was an abortive attempt to legislate the incumbent out of office. It was held that this could not be done. The same doctrine is recognized in Halsey v. Gaines, 2 Lea, 316, 324-5; McCulley v. State (Judges Cases), 102 Tenn. 509, 538, 540; State v. Lindsay, 103 Tenn. 625. The Redistricting Cases, 111 Tenn. 234; State v. Hamby, 114 Tenn. 361;

In

s. P. Hoke v. Henderson, 4 Dev. (N. Car.)
1; State Prison v. Day, 124 N. Car. 362,
abolishing office of superintendent of
prisons; Wood v. Bellamy, 120 N. Car.
212, abolishing offices of State hospital
superintendent and directors.
Silvey v. Boyle, 20 Utah, 205, the cap-
tain of police was attempted to be dis-
charged by ordinance passed January
31, 1898, which the city claimed had the
effect to abolish the office; on Febru-
ary 7, 1898, a new ordinance was passed
creating the office of captain of police,
and February 11, 1898, another person
was appointed to the office. The court
held the removal was void, saying that
"the real purpose and design was not
to abolish the office, but to get rid of
one incumbent to make room for an-
other. An officer whose tenure is dur-

$422

COMPENSATION OF OFFICERS

731

As all public offices are created for the public good, and as officers are acting for or on behalf of the State or the public, the cases which hold that, as against the State, the right to exercise a public office created under legislating authority is property, and protected as such against legislative dominion or control except only by an act absolutely extinguishing the office itself, may perhaps have carried this doctrine beyond true constitutional limits, and unduly abridged the legitimate scope of legislative authority. The general doctrine is that over all municipalities as governmental agencies the legislature is supreme except as limited by constitutional provisions.1

$ 422 (230). Compensation of Officers. There is no such implied obligation on the part of municipal corporations, and no such relation between them and officers which they are required by law to elect, as will oblige them to make compensation to such officers, unless the right to it is expressly given by law, ordinance, or by contract. Officers of a municipal corporation are deemed to have ing good behavior or who can only be if such were its power the legislature removed for cause, cannot be thus legislated out of office." So in Kentucky, in Adams v. Roberts, 119 Ky. 364, 83 S. W. Rep. 1035, 1037, it is said: "Though the legislature is given the power to abolish the office of commonwealth's attorney in this State, until it does so, it cannot abolish the tenure of any rightful incumbent of the office. He might be impeached, but not legislated out of the office. Cooley's Const. Lim. (6th ed. 482); Blank Const. To the same Prohib. p. 119, § 99." effect is State v. Wilts, 11 La. An. 439, where the court said: "It is inadmissible to say that a person holding an existing office under a fixed tenure can be removed, or that his regular term of office can be abridged by an ordinary act of the legislature other than an act abolishing the office."

Ante, chap. iv.; Index, Office and Officer. In Matter of Metz v. Maddox, 189 N. Y. 460; decided November 19, 1907, cited supra, § 377, Cullen, C. J., who delivered the opinion of the Court of Appeals, declared that when a canvass of votes has been concluded under the statutory provisions for its conduct existing at the time, the legislature has no power to create a new tribunal with power to recanvass the election and to award possession of the office to another claimant. He pointed out that

might, except for constitutional restriction, equally conduct the recanvass and make the determination itself; that the result of such a doctrine would be appalling; that where the result of an election had been adverse to the party to which the majority of its members belonged, the legislature might, by a subsequent statute, authorize a recanvass of the election of the governor, of the judges of the courts, of the State officers, and of the presidential electors, who in New York are elected by the people.

Prince v.

2 Sikes v. Hatfield, 13 Gray (Mass.), 347; Barton v. New Orleans, 16 La. An. 317; Garnier v. St. Louis, 37 Mo. 554; Rowe v. County of Kern, 72 Cal. 353; White v. Levant, 78 Me. 568; Perry v. Cheboygan, 55 Mich. 250; Haswell v. New York, 81 N. Y. 255; Durango v. Hampson, 29 Colo. 77; Coleman v. Elgin, 45 Ill. App. 64; Farwell v. Rockland, 62 Me. 296; Skillin, 71 Me. 361; Goud v. Portland, 96 Me. 125; Fernald v. Dover, 70 N. H. 42; Nash v. Mayor of Nashville, 108 Tenn. 68; Anderson v. Milwaukee, 113 Wis. 1. It is advisable that salaries should be fixed by ordinance, and not voted as a matter of grace and favor. Smith v. Commonwealth, 41 Pa. St. 335; Devoy v. New York, 39 Barb. (N. Y.) 169; Bladen v. Philadelphia, 60 Pa

accepted their office with knowledge of, and with reference to, the provisions of the charter or incorporating statute relating to the services which they may be called upon to render, and the compensation provided therefor. Aside from these, or some proper by-law, there is no implied assumpsit on the part of the corporation with respect to the services of its officers. In the absence of express contract, these determine and regulate the right of recovery, and the amount. If the charter or by-laws provide for a peculiar mode of compensation, as, for example, to a city surveyor for superintending grading of streets, by an assessment upon the property owners, the

hold the city liable. Nash v. Mayor of Nashville, 108 Tenn. 68.

St. 464. See opinion of Thompson, C. J., Philadelphia v. Given, 60 Pa. St. 136. Municipal corporations are not Locke v. Central City, 4 Colo. 65; liable for services performed by an Brazil v. McBride, 69 Ind. 244; Doolan officer under an unconstitutional v. Manitowoc, 48 Wis. 312; Gorr v. statute. Meagher v. Storey County, Port Jervis, 57 N. Y. App. Div. 122; 5 Nev. 244; post, § 1575; City of Central Iron Mountain v. Uddenberg, 127 Mich. v. Sears, 2 Colo. 588. The first sentence 189; Clark v. Portsmouth, 68 N. H. of this section of the text cited and 263; supra, § 396. A public officer is applied in Bosworth v. New Orleans, not entitled to payment for duties im26 La. An. 494, 495. An officer law- posed upon him by statute in the fully suspended cannot recover salary absence of an express provision for such for the time of his suspension, whether payment. Jones v. Carmarthen, 8 he is finally removed or not. Black- M. & W. 805; Askin v. London, 1 Upper well v. Thayer, 101 Mo. App. 661. Can. Q. B. 292; Pringle, In re, 10 Upper Where, at the time an officer is elected, Can. Q. B. 254; Regina v. Cumberlege, his salary has not been fixed, an ordi- 36 L. T. N. s. 700. Where it is the duty nance passed during his term fixing of the treasurer of the city to receive all his salary is not a violation of the money paid to the city and to pay out constitutional restriction against en- the same, and the city receives and larging or diminishing the salary of disburses money which should have an officer during his term of office. gone through his hands and upon State v. McDowell, 19 Neb. 442; which he was entitled to a commission, Wheelock v. McDowell, 20 Neb. 442. he may sue to recover the commission See also Purcell v. Parks, 82 Ill. 346; thereon as if he had handled the money Rucker v. Pocahontas County Super- himself. Baxley v. Holton, 114 Ga. visors, 7 W. Va. 661. Under an ap- 724. See also Beard v. Decatur, 64 pointment to office "without com- Tex. 7. Absence on personal business pensation until otherwise ordered" does not diminish a mayor's salary the incumbent is only entitled to though an acting mayor has been compensation from the time of the appointed at the same salary. Bates order directing its payment. McGough v. New York, 83 N. Y. App. Div. 322. If the legislature shortens an officer's term of office, he cannot recover his salary for his unexpired term. Long v. New York, 81 N. Y. 425. Further, as to de facto officers, see ante, §§ 395n., 413n., 422n., 429n., 485 and note. A secretary of a municipal board of health whose duties were clerical was held not entitled to recover for services in the treatment of smallpox patients during an epidemic, without the authority of the city officers, acceptance by them, or notice that he would

v. St. Louis, 153 Mo. 18. The right of set-off in respect of his salary was denied to a municipal officer where it was the duty of the officer to deposit all moneys received in the treasury, and where it was provided his salary was to be paid in a specific manner. The decisions of the Supreme Court of the United States, allowing equitable setoff in such cases, were distinguished. New Orleans v. Finnerty, 27 La. An. 681; s. c. 21 Am. Rep. 569. If the city is liable at once to suit by the officer, why deny the right of set-off?

city is not liable before it collects the money, if it makes the requisite assessments, and is proceeding with proper diligence to enforce

them.1

§ 423 (231). Power of Municipality to abolish Office or to regulate Salary. It is a general rule where not qualified or restricted by positive law, that the power that creates an office may abolish it in its discretion, and this rule is applicable to municipal offices created by the act of the municipality. A municipal corporation may, unless restrained by charter or other statute, abolish an office created by ordinance; and may also, unless the employment is in the nature of a contract, reduce or otherwise regulate the salaries and fees of its officers, according to its view of expediency and right. Although an officer may be elected or appointed for a fixed period, yet where he is not bound, and cannot be compelled to serve for the whole time, such election or appointment cannot be considered a contract of hire for a stipulated term. Ordinances fixing salaries are not in the nature of contracts with officers, for the full term of their office.3

Baker v. Utica, 19 N. Y. 326; post, chapter on Contracts; People v. N. Y. Bd. of Supervisors, 1 Hill (N. Y.), 362; Cumming v. Mayor, &c. of Brooklyn, 11 Paige, 596; Jersey City v. Quaife, 26 N. J. L. 63; Andrews v. United States, 2 Story C. C. 202, 203; United States v. Brown, 9 How. (U.S.) 487; Barton v. New Orleans, 16 La. An. 317; McClung v. St. Paul, 14 Minn. 420; Smith v. Commonwealth, 41 Pa. St. 335. "It is very plain to us that a town officer, as such, has no legal claim against the town to recover pay for services rendered, unless by an express vote of the town, or a uniform usage to pay that particular officer from year to year, for his services. And in the latter case, it would be very questionable whether a recovery at law could be had, if it had all along been left to the town to make such compensation as they should deem reasonable after the services had been rendered. The same principle has always been recognized in this State in regard to all officers. If no law of the State fixed their fees or pay, their services must be gratuitous," Per Redfield, J., Boyden v. Brookline, 8 Vt. 284. But the decision (in Boyden v. Brookline, 8 Vt. 284) does not extend strictly beyond official services; and when a town agent, acting for the town, or the town itself, employs an attorney at law

to prosecute or defend suits against the town, the latter is liable for the services. And the rule is the same if the "town agent," being an attorney, renders for the town professional services, in suits which the proper authorities of the town directed to be instituted. Langdon v. Castleton, 30 Vt. 285; City of Central v. Sears, 2 Colo. 588; Locke v. Central City, 4 Colo. 65. A provision that a city marshal shall have the same duties, responsibilities, and fees as sheriffs does not import that he may recover from the county in which the city is located for services rendered in the administration of the criminal law. Christ v. Polk County, 48 Iowa, 302. A municipal officer is presumed to know the city ordinances and orders which fix his salary, and his acceptance of the amount so fixed will estop him from claiming more. Galbreath v. Moberly, 80 Mo. 484; Rau v. Little Rock, 34 Ark. 303. As to estoppel by acceptance see also Hobbs v. Yonkers, 102 N. Y. 13; McInery v. Galveston, 58 Tex. 334.⚫

2 Oldham v. Birmingham, 102 Ala. 357, 364; Ford v. Harbor Com'rs, 81 Cal. 19; State v. Hyde, 129 Ind. 296, 302; Goodwin v. State, 142 Ind. 117; Downey v. State, 160 Ind. 578, 581 Heath v. Salt Lake City, 16 Utah, 374, 382; McAllister v. Swan, 16 Utah, 1.

3 Commonwealth v. Bacon, 6 Serg.

§ 424 (232). Same Subject; Exception to Rule resting on Contract. But where the services to be performed are professional or