private, rather than public or official, an employment under an ordinance for a fixed time, at a fixed sum for the period, has been held to be a contract, and not subject to be impaired by the corporation.

his term of office," an ordinance providing that "after the expiration of the term of the present mayor of the city, the mayor shall serve without compensation was held to be ultra vires and void, on the ground that a power to change the salary was not a power to abolish it altogether. State v. Nashville, 15 Lea (Tenn.), 697.

Where an officer is appointed for a term under an ordinance providing that he shall be removable for cause, the city may, during his term, repeal the ordinance and elect another officer by a new ordinance. Oldham v. Birmingham, 102 Ala. 357, 364; Donaghy v. Macy, 167 Mass. 178. See also Palestine v. West (Tex. Civ. App.), 37 S. W. Rep. 783, distinguishing San Antonio v. Mieklejohn, 89 Tex. 79. And see Malone v. Williams, 118 Tenn. 390, 103 S. W. Rep. 798, referred to supra. Index, Contracts, Office and Officer.

judge, and that his salary shall be fixed by ordinance, and the council and judge are elected at the same time, the council may afterwards fix the judge's salary, and he cannot claim salary under the old charter. Barrett v. Falmouth, 109 Ky. 151. Where an ordinance provides that a recorder's salary shall be fixed by the city council at the first meeting after their qualification and before his election, the recorder cannot claim the salary paid for his predecessor, especially when he has accepted the amount fixed by the council. Chandler v. Johnson City, 105 Tenn. 633. An act amending a charter and giving a mayor and alderman salaries is not retrospective. Montpelier v. Senter, 72 Vt. 112. When a board of aldermen have power to fix the compensation of city officers, they may provide that the fees payable to the city attorney on convictions shall be contingent on collection from defendants. Kemp v. Monett, 95 Mo. App. 452. Where, by statute, power is. given to the committee of freeholders as framers of a charter to fix the salary of city officers, they cannot redelegate this authority by authorizing the council or other body to fix such salary within a limited amount. Taylor v. Tacoma, 8 Wash. 174.

It is frequently provided by State Constitutions or statutes that the salary of an officer shall not be increased or diminished during his term of office. See Stadler v. Fahey, 87 Ill. App. 411; Turner v. Chicago, 76 Ill. App. 649; Lexington Board of Education v. Moore, 114 Ky. 640; Louisville v. Wilson, 98 Ky. 598; Grenada v. Wood, 81 Miss. 308; State v. Longfellow, 95 Mo. A statute giving power to fix the App. 668; State v. Moores, 61 Neb. 9; compensation of the mayor by ordiQuintard v. New York, 51 N. Y. App. nance limiting it to a certain amount, Div. 233; Devers v. York City, 150 is not self-executing, and an ordinance Pa. 208. Or during his holding over. must be passed. State v. Olinger, 109 State v. Moores, 61 Neb. 9. In Wolf v. Iowa, 669. Salary may be fixed by a Hope, 210 Ill. 50, it was held that a resolution instead of ordinance where judge of a city court is a municipal offi- charter provisions as to mode are silent. cer within the meaning of such a con- Hart v. Minneapolis, 81 Minn. 476. See stitutional provision, and that his sal- chapter on Ordinances. Aldermen canary could not be diminished or in- not determine their own compensation. creased during his term of office. A McFarland v. Gordon, 70 Vt. 455. city ordinance changing the compensa- mayor is entitled to an office, and he tion of officers will not be construed as may collect the expense thereof, or a applying to persons who were incum- fair share thereof, if the room occupied bents at the time of its passage so as to as an office is used by him for other make the ordinance invalid. Lowry v. purposes. Hill v. Clarinda, 103 Iowa, Lexington, 113 Ky. 763. A council 409. Quare? But it has been held with power to fix the compensation of that a police magistrate who rents an an officer may reduce the salary of a office without the sanction of the city, new officer after his appointment, but there being no duty on his part to do before the commencement of his term. so, raises no obligation on the city to Wesch v. Common Council of Detroit, reimburse him therefor. Coleman v. 107 Mich. 149. Where a new charter Elgin, 45 Ill. App. 64. provides for the election of a police

A

Thus the appointment or election by a city council, for a fixed and definite period, of a city officer, for example, a city engineer, for one year, at the rate of one thousand dollars per year, if accepted by him, constitutes, in the opinion of the Supreme Court of Massachusetts, a contract between him and the city; and the city, in such a case, has no authority, unless expressly conferred or reserved, to abolish or shorten the term of office, so as to deprive the officer, without his consent, of the right to compensation for the full period, unless for misbehavior or unfitness to discharge the duties of the place.1

§ 425. Officers and Employees distinguished. — The principles embodied in the previous section have their natural application to those persons in the municipal service who are properly to be regarded as employees rather than as public officers. It has been said that the essential element in a public office is that the duties to be performed shall involve the exercise of some portion of the sovereign power, whether great or small, but in the development of municipal affairs it has been found necessary to an extent which is steadily increasing to employ persons who cannot fairly be regarded as officers, but who occupy positions which are merely employments. The question whether a person is an officer or a mere

Chase v. Lowell, 7 Gray (Mass.), 33; Bell v. New York, 46 N. Y. App. Div. 195, citing text; and see Caverley v. Lowell, 1 Allen (Mass.), 289, as to ordinance constituting a contract with city attorney. These cases, if really distinguishable from the others, should not, it is believed, be extended, but the principle limited to instances where the services are not essentially official in their nature, and where the officer or other party is bound to serve for the fixed and definite period. Appointment of police officer for a year, held not to create a contract, and he was removable, without cause, within that period. Chicago v. Edwards, 58 Ill. 252.

A resolution of the council empowering an individual to collect the taxes due the city, at a given rate per cent on the amount collected for his compensation, may be repealed or modified at any time by the corporation, on the sole condition that it shall be liable for any compensation earned under the resolution previous to its repeal or modification. Hiestand v. New Orleans, 14 La. An. 330. The court did not regard the resolution as creating a contract,

or, if so, it was one of mandate, revocable at the will of the principal. Ib. Much less has the mayor power to alter a salary, and an agreement between the mayor and city engineer for a reduced salary to the latter is void. Rettinghouse v. Ashland, 106 Wis. 595. Encroachment on the duties of a commissioner of public works in making plans, &c., by the city authorizing the employment of an architect is unauthorized and the commissioner may restrain the same by injunction. Moreland v. Common Council, 130 Mich. 343.

2 Attorney-General v. Drohan, 169 Mass. 534, 535; People v. Cahill, 188 N. Y. 489, 494; People v. McAdoo, 98 N. Y. App. Div. 312. A public office only exists either by a constitutional provision, or by the fiat of the legislature, or of some body or board to which the legislature has delegated the power to create an office. Meyers v. Mayor, &c. of New York, 69 Hun (N. Y.), 291; Eckerson v. New York, 80 N. Y. App. Div. 12, aff'd 176 N. Y. 609.

3 It has been said that, in general, where the people or the legislature cre

employee is one which is involved in difficulty, and for the determination of which it is probable that no satisfactory rule can be enunciated. The question who are officers and who are employees will, almost necessarily, be determined in each jurisdiction by decisions made upon the facts of each particular case, and in which the controlling factors will be the origin of the position (i. e., whether created or provided for by constitutional provision, or by statute, or merely by ordinance under a general statutory authority to appoint the necessary officers and employees), the duties attached to the position, and, to a minor degree, its relation to the general scheme of the municipal government, as, for example, its subordination to the incumbent of another office or position.' In the case of officers, the compensation usually a salary is attached to the office, as an incident, and is not dependent upon the performance of actual service, while the salary or compensation of an employee is intended as remuneration for services actually rendered and, generally speaking, can only be recovered in respect of services rendered or tendered to the municipality. But if the employee has properly reported for

ate an office, or designate a person to perform some function of government, the head of such an office would be a public officer; whereas if the head of such an office delegates part of his work to a number of persons to carry out the details of the work, the persons so appointed would, generally speaking, be holders of positions or employees. People v. Hamilton, 98 N. Ý. App. Div. 59, 62.

1 Distinction between "officer" and "employee," see Baltimore v. Lyman, 92 Md. 591. A person whose duties are clerical and relate not to the public, but to the head of the department who is charged with the discharge of the duties of the office, is not a public officer. People v. McAdoo, 98 N. Y. App. Div. 312. Complaint clerk in the office of the commissioner of police of New York City, held not to be a public officer, but a mere employee. People v. McAdoo, 98 N. Y. App. Div. 312. Librarian of a school district is not a public officer, but an employee. Bell v. New York, 46 N. Y. App. Div. 195. Property clerk in department of parks in New York City held to be an employee and not an officer. Van Valkenburgh v. New York, 49 N. Y. App. Div. 208. Counsel for department of charities and corrections of Brooklyn, held to be an employee and not a public officer. Quintard v. New York, 51 N. Y. App.

Div. 233. Teacher in public schools held to be an employee and not a public officer. Steinson v. Board of Education, 165 N. Y. 431, aff'g 49 App. Div. 143; Gunnison v. Board of Education, 176 N. Y. 11, 19, aff'g 80 N. Y. App. Div. 480; Buckbee v. Board of Education, 115 N. Y. App. Div. 366, aff'd 187 N. Y. 544. Clerk to coroner of a borough in New York City held to be an employee. People v. Cahill, 188 N. Y. 489, rev'g 116 N. Y. App. Div. 885. Secretary of relief fund in office of fire commissioner of New York held to be an employee and not a public officer. People v. Hayes, 106 N. Y. App. Div. 563. Inspector of masonry in New York held to be an employee and not an officer. Dunne v. New York, 116 N. Y. App. Div. 331. Inspector of regulating and grading streets in New York City held to be an employee and not an officer. Meyers v. Mayor, &c. of New York, 69 Hun (N. Y.), 291. Superintendent of sidewalk and sidewalk repairs held to be an employee and not an officer. Grieb v. Syracuse, 94 N. Y. App. Div. 133.

2 Fitzsimmons v. Brooklyn, 102 N. Y. 536; People v. Police Com'rs, 114 N. Y. 245, 247.

3 Quintard v. New York, 51 N. Y. App. Div. 233, 237; Dunne v. New York, 116 N. Y. App. Div. 331; Gutheil v. New York, 119 N. Y. App. Div. 20;

work in the department to which he belongs, the mere fact that he did not actually render service, although ready and willing to do so, will not preclude him from recovering his compensation so long at least as his position has not been abolished or he has not been legally discharged or it is not found that there was no work for him to do.1 The remedies available to employees also differ to some extent from those which are available to officers strictly so called. It has been held that the rule that courts will not, at the instance of a person out of possession of an office, try the title thereto by mandamus, but will leave the party to his remedy by writ of quo warranto, has reference to public officers created by law, and is not applicable to clerks or employees unlawfully removed from their positions by superior authority. Hence an employee can have mandamus to compel his

there is no contract between the officer and the State or municipality by force of which the salary is payable. That belongs to him as an incident of his office, and so long as he holds it; and when improperly withheld he may sue for it and recover it. When he does so he is entitled to its full amount, not by force of any contract, but because the law attaches it to the office; and there is no question of breach of contract or resultant damages out of which the doctrine invoked has grown. We think, therefore, it has no application to the case at bar."

Cook v. New York, 9 N. Y. Misc. 338, no contract. We have often held that aff'd 150 N. Y. 578. In Fitzsimmons v. Brooklyn, 102 N. Y. 536, the court held that an officer (e. g., a member of the police force) who has been prevented for a time through no fault of his own from performing the duties of his office, and has during that time earned compensation in another and different employment, cannot be compelled in an action to recover his unpaid salary to deduct the amount so earned. Finch, J., who delivered the opinion of the court in overruling the contention of the city that it was entitled to this deduction, said: "The rule sought to be applied by the city to The term "position" when used in the claim of the plaintiff finds its usual a statute is indefinite, and may include and ordinary operation in cases of officers or may be limited to cases of master and servant and landlord and employees. Its meaning is dependent tenant; relations not at all analogous upon the purport and intention of the to those existing between the officer statute and the duties required to be and the State or municipality. The performed. People v. Van Wyck, 157 rule in those cases is founded upon the N. Y. 495, 504. A mere employee, as fact that the action is brought for a distinguished from an officer holding an breach of contract and aims to recover office to which a salary is attached as damages for that breach, or compensa- an incident, cannot recover wages for tion for the servant's loss actually the time he is incapacitated from worksustained by the default of the master. ing by reason of illness. Eckerson v. That loss he is required to make as New York, 80 N. Y. App. Div. 12, small as he reasonably can. His dis- aff'd 176 N. Y. 609. The department charge without just cause is not a may adopt a rule that deductions license for voluntary idleness at the shall be made from the salaries of expense of the master. If he can obtain other employment, he is bound to do so, and if he engages in other service, what he thus earns reduces his loss flowing from the broken contract. But this rule of damages has no application to the case of an officer suing for his salary, and for the obvious reason that there is no broken contract or damages for its breach where there is

employees for absence without leave, even in case of absences caused by illness. Murphy v. Board of Education, 87 N. Y. App. Div. 277.

1 Graham v. New York, 167 N. Y. 85, rev'g 55 N. Y. App. Div. 627; Driscoll v. New York, 78 N. Y. App. Div. 52.

2 People v. App. Div. 59;

Hamilton, 98 N. Y.
People v. McAdoo, 98

reinstatement in the position from which he had been illegally re-. moved, although another person may have been appointed and is actually filling it and performing the duties.1

§ 426 (233). Extra Compensation. It is a well-settled rule that a person accepting a public office, with a fixed salary, is bound to perform the duties of the office for the salary. He cannot legally claim additional compensation for the discharge of these duties, even though the salary may be a very inadequate remuneration for the services. Nor does it alter the case that by subsequent statutes or ordinances his duties within the scope of the charter powers pertaining to the office are increased and not his salary. Whenever he considers the compensation inadequate, he is at liberty to resign. The rule is of importance to the public. To allow changes and additions in the duties properly belonging or which may properly be attached to an office to lay the foundation for extra compensation, would introduce intolerable mischief. The rule, too, should be rigidly enforced. The statutes of the legislature and the ordinances of our municipal corporations seldom prescribe with much detail and particularity the duties annexed to public offices; and it requires but little ingenuity to run nice distinctions between what duties may and what may not be considered strictly official; and if these distinctions are much favored by courts of justice, it may lead to great abuse.3

N. Y. App. Div. 312; People v. Sutton, 88 Hun (N. Y.), 173. See also People v. Kearney, 44 N. Y. App. Div. 449, 452. Quo warranto will not lie to try the right to a clerkship in the public service, which does not exist solely by force of law, but by the will and discretion of the appointing officer. People v. Sutton, 88 Hun (N. Y.), 173.

People v. Hamilton, 98 N. Y. App. Div. 59; People v. McAdoo, 98 N. Y. App. Div. 312; People v. Hayes, 106 N. Y. App. Div. 563; People v. Cahill, 188 N. Y. 489, rev'g 116 N. Y. App. Div. 885.

2 Ante, § 396. Though the duties of a municipal officer may be increased by a city council, it has no power to confer upon another officer the duties, powers, and rights appertaining to his office by statute. So a treasurer duly appointed and qualified, whose duty it was by law to receive and pay out the money belonging to a city, was held to be entitled to commissions upon the proceeds of bonds sold by the mayor

under authority of the council. Beard v. Decatur, 64 Tex. 7.

3 Per Potts, J., in Court of Errors and Appeals, Evans v. Trenton, 24 N. J. L. 764, 766; ante, § 396. The text cited and approved in Decatur v. Vermillion, 77 Ill. 315. See also Andrews v. United States, 2 Story C. C. 202; Palmer v. Mayor, &c. of New York, 2 Sandford (N. Y.), 318; Bussier v. Pray, 7 Serg. & Rawle (Pa.), 447; Angell & Ames on Corp. § 317; Gilmore v. Lewis, 12 Ohio, 281; Detroit v. Redfield, 19 Mich. 376; Sidway v. South Park Commissioners, 120 Ill. 496. Compensation restricted to salary. O'Sullivan v. City, 49 La. An. 616; Lancaster v. Arnold, 20 Ky. Law Rep. 34; 45 S. W. Rep. 82; Oakland v. Snow, 145 Cal. 419; Alberts v. Torrent, 98 Mich. 512; Lemoine v. St. Louis, 119 Mo. 419; Palmer v. Benjamin, 21 N. Y. App. Div. 180; McGuire v. Baker City, 27 Oreg. 340; Thaison v. Sanchez, 13 Tex. Civ. App. 73; McCumber v. Waukesha County, 91 Wis. 442. But when