167 Mass. 178 | Mass. | 1896
On January 1, 1894, under the ordinances then in force, the petitioner was duly elected to his office for the term of four years, ending in January, 1898. Ordinances of 1882, c. 11, § 4. In 1896 this ordinance was repealed, and a new ordinance was adopted, which, so far as it affects'the present case, is like the old one, except that the time of election is April instead of January, and the first election under it is for two years, ending in 1898. After that the elections are for four years. The petitioner suggests a doubt whether the powers of the city council were not exhausted by one exercise, so that the second ordinance is void, and argues that, however that may be, inasmuch as by § 5 of the earlier ordinances he was removable for cause, he could not be removed otherwise, but had a contract with the city which no more could be avoided b-y a repeal of the ordinance than by a more direct attempt to remove him without cause.
We have no doubt that the city council had power to pass the second ordinance. St. 1852, c. 177. It is not necessary to resort to the words “ from time to time,” in § 1, to convince us that the powers given by that section were not exhausted by a single exercise. This being so, we think that the respondent Dahill lawfully fills the office created by the later ordinance, and, even if it were true that the petitioner has a contract which binds the city, we should hesitate long before requiring the city to keep the earlier created office open for the purpose of specifically performing it. We should be much more likely to leave the petitioner to his remedy by action.
It is not to be presumed that the repeal of the ordinance was a mere device to get rid of the petitioner, and the petition does not allege such a case. Petition denied.