27 N.J.L. 265 | N.J. | 1859
On the 18th of June, 1855, the city council of Hoboken, in pursuance of powers conferred by the charter of the city, passed an ordinance to establish a day and night police. The ordinance provides for the appointment of a chief of police and of five assistant policemen, one from each ward of the city, who are to hold their respective offices for the term of two years, and to receive, by way of compensation for their services, a stated salary. On the 20th of June, 1855, George J.
The plaintiff having rested his. evidence, the defendant objected that there could be no recovery, the declaration containing only the common indebitatis assumpsit count for services performed ^ by the plaintiff as policeman, and there being no evidence of any service rendered which
One of the errors assigned is, that the court permitted the plaintiff to amend his declaration by introducing a new cause of action. The authority for the amendment is claimed under the 46th section of the act of 1855. Nix. Dig. 641, § 166. The ¡tower is conferred, to use the language of the statute, “ in order to prevent the failure of justice by reason of mistakes and objections of form.” The ¡tower of amendment is very broad. The court is authorized “ to amend all defects and errors in any proceedings in civil causes.” And the act not only authorizes such amendments, but expressly requires that ‘‘all such amendments as may be necessary for the purpose of determining, in the existing suit, the real question in controversy between the parties shall be so made.” What, then, are to be deemed “ mistakes or objections of form” within the meaning of the act, and how is “ the real question in controversy between the parties” to be ascertained or determined? The defendant’s counsel objects that the amendment was .not a matter of form, but of substance, and that, it introduced a new substantive cause of action; that under the common count, as the declaration was originally framed, the plaintiff claimed compensation for service actually rendered ; that under the amended declaration, he claimed to recover not for services rendered, but by virtue of a special contract, by which the defendants stipulated to pay a fixed salary for a specified time. And so under the ¡¡leadings, as they originally stood, the real question at issue, and therefore, by technical rules of law, the real question iu controversy between the parties, was whether services had in fact been rendered by the plaintiff to the defendant. And clearly the amendment was not necessary for the purpose of de
Whether, therefore, the amendment is to be deemed matter of form or of substance, depends upon the question whether the statute is to he interpreted in regard to the technical rules of pleading, and whether the real matter in controversy is to he ascertained by reference to the formal issue on the record, or to the actual claim of the party and the evidence offered on the trial. o
A somewhat analogous inquiry has been, to some extent, a vexed question in Westminster Hall under the statute of 3 and 4 Will. 4, ch. 43, § 23; chitty’s Pl. (7th ed.) Appendix, p. 719. That statute, in order to avoid objections on the ground of variance, authorizes the proceedings in civil actions to he amended in any particular not material to the merits of the case, and by which the opposite party cannot have been prejudiced, in the conduct of his action or defence. Now if the statute is to he interpreted solely in reference to the issue made by the pleadings, everything is material to the merits by which the result of the trial would he affected ; and so every amendment which would prevent a nonsuit on the most technical grounds would he prejudicial to the conduct of the defence.
In order to avoid these technical difficulties, the 43d section of the statute now under consideration (Nix. Dig. 641, § 163,) declares that no variance between the allegations in a pleading and the proof shall he deemed material, unless if have actually misled the adverse party to his prejudice in maintaining his action or defence upon the merits. This section makes the materiality of the variance depend solely upon its effect, upon the substantial merits of the ease irrespective of all technicalities. I cannot doubt that the same object was in contemplation ip framing the 46th section of the act now under consideration. Its object was to avoid the delays, embarrassments, and defeat of justice, too often caused by the technical
This subject has been recently under consideration by the Court, of Common Bench in England, in the case of Wilkin v. Reed, 15 C. B. 192. The question arose upon the construction of the 222d section of the common law procedure act, (15 and 16 Vic., ch. 76,) of which the 46th section of our act is, in its material provisions, a literal copy. The action was by one attorney against another, for giving the false character of a clerk. The declaration charged that the defendant fraudulently represented to the plaintiff that the reason why he had dismissed the clerk from his employ was the decrease of his business; that he recommended the plaintiff to employ the clerk, and concealed from the plaintiff the fact that the clerk had been dismissed for dishonesty. On the trial, it appeared that the clerk had not been dismissed from the defendant’s employ on account of dishonesty, but really for the reason assigned by the defendant to the plaintiff’. But it further appeared that the clerk, while in the defendant’s employ, had been guilty of dishonesty, and that the defendant, had not communicated that fact to the plaintiff. On the trial the plaintiff moved to amend the declaration by substituting, in lieu of the charge that the defendant had fraudulently concealed the fact that the
•If it appeared that the amendment bad been improperly allowed, there would have been a serious question upon another point, not mooted on the argument, viz., whether the decision of the judge in allowing the amendment is a proper subject of a writ of error. Whether or not the proposed amendment is necessary for the purpose of determining the real question in controversy is, to some extent at least, a question of fact. What the real question
The second error relied upon is, that an ordinance of the city council was improperly admitted in evidence, inasmuch as the ordinance was not published for twenty days, as required by the charter. The charter requires that every ordinance shall be published for the space of twenty days in at least one newspaper published or circulated in said city or county before said ordinance shall go into effect. The publication is essential to the validity of the ordinance. The ordinance was inserted in a weekly newspaper, published in the city, for three weeks successively, once in each week. Twenty days from the time of the first publication had expired before the next number of the' paper was issued. The charter does not re
The third error assigned is, that the court refused to non-suit the plaintiff, on the ground that he had not maintained and proved the issue on his part. This raises the material question in the cause, whether upon the declaration, as amended, the plaintiff can recover upon the evidence offered at the trial. The evidence shows that so long as the plaintiff continued to act as policeman ho was paid his salary. The question is, whether after he had been discharged, whether lawfully or unlawfully, he had ceased to act as policeman, he is entitled to recover his salary during the term for which he was originally appointed; whether, in oilier words, the appointment of an officer of a municipal corporation, with a fixed salary for a definite term of office, operates as a contract between the public and the individual, whereby they are bound to 'pay that salary during the term for which he is appointed, or so long as he continues de jure in office. A question was made upon the argument,
The city clerk says, “the resolution disbanding the police was taken by me, and the chief of police put the resolution up in the station-house of the police. The ébief called up the policemen, pointed to the notice, called their attention to it, and said they were discharged. The chief told the policemen they were disbanded under the resolution, and said he would not have charge of them any more, and called the resolution their death warrant. He also told them to deliver up their stars and emblems, and they laid them down, and did not make any objection.” The mayor says, “I do not think the policemen ever applied to me to see what they should do after they were discharged. I recognized the plaintiff and the other policemen as policemen until after the passage of the resolution disbanding them ; I treated them as such, and gave orders to them as such up to that time. After the Dili of January, 1856, there was no police force in Hoboken; none that were acting at that time.” However informal or unlawful the resolution of council may have been, it evidently was understood, and operated as a discharge in fact of the police force. Erom that time they ceased to act. There is no evidence that from that time the plaintiff did, or offered to do, any service whatever as policeman. He was not a policeman de facto. He could not have been held responsible for any neglect or breach of duty in his office. The plaintiff then claims, and 'must recover solely on the ground of his contract. The amended declaration contains no averment of service. He insists that his ap
/ This is a case of first impression in this court, and so far as I am aware, without a precedent anywhere. None was referred to on the argument, and my researches have not enabled me to find one. I know of no principle or authority to sustain it. The appointment of a public officer for a definite term with a fixed salary bears no analogy to a private contract between individuals for service. The private contract is purely voluntary. Both parties are bound by its stipulations. The employer can neither alter the time or mode of payment, nor vary the service to be i’endei»ed, nor abridge the time of service. The employed cannot abandop the service. Each is liable to the other for breach of contract on failure to perform. But an appointment to a public office during a term of years, and the acceptance of such office, is not a contract, between the government and an individual that the officer will serve, or that, the government will pay during that period. The acceptance may not be a matter of choice, but of compulsion ; and whore the acceptance is voluntary, the officer is not, bound to serve during the term. lie may remove from the stale, or resign, or otherwise determine his official relation, without a violation of contract. 2 Denio 272; 7 Hill 81; 2 Sandf. Sup. C. E. 355; 1 Seld. 296.
If he be guilty of malfeasance or neglect of duty, no action by the government for a breach of contract lies against him The remedy is by indictment or impeachment. The King v. Holland, 5 T. R. 607; Wilson v. Com., 10 Serg. & R. 373; Wharton’s Cr. Law (4th ed.) §§ 2514—15. And, on the other hand, the government may abolish the office, and thereby terminate the service without a viola
Whether the officer be appointed immediately by the government or through the agency of a municipal corporation is immaterial. The duties to be performed, not the mode of appointment, constitute the test of his being a public officer. Is he concerned in the administration of public duties? Is he invested with any portion of political power partaking in any degree in the administration of civil government, and performing duties which flow from the sovereign authority ? If so, his office is a public office. Dartmouth College v. Woodward, 4 Wheaton.
An appointment to a public office is not a contract within that clause of the constitution which forbids the state legislature to pass any law impairing the obligation of contracts. The design of that clause was, in the language of Chief Justice Marshall, to restrain the legislature from violating the right to property, from impairing the obligation of contracts respecting property, under which some individual could claim a right to something beneficial to himself. And because an appointment to office is not such contract, it is not within the prohibition of the constitution. 4 Wheaton.
In Conner v. The Mayor, Aldermen, and Commonalty of
In The People, on the relation of Perry, v. Thompson, 25 Barb. R. 73, an application was made by one of two contestants to the office of mayor of Albany for a mandamus to the chamberlain of the city to compel the payment of the applicant’s salary as mayor for one year. The application was refused, on the ground that the salary was a debt, and might he recovered by suit against the corporation like any other debt. But in that case, as appears by the report,'(and more fully in the report of Morgan v. Quackenbush, 22 Barb. 72,) the applicant had been in the actual possession of the office, and had discharged its duties.
And in the recent ease of Mincho v. The Mayor, &c., of New York, decided by the Superior Court at December Term, 1858, the complaint alleges not only that the plaintiff was appointed a policeman, and entitled to the exercise of the office during the term of two years, hut that during the whole of that period he performed the duties of the office.
There was a failure on the part of the plaintiff to prove the contract set out in his declaration.
Aside irons the objection that there is no contract between the parties upon which the plaintiff can rely for a recovery, the action ought not to bo sustained upon principles of public policy. It is a new mode of trying, in a
If the plaintiff was improperly removed, the law furnishes other more efficient and appropriate remedies. A mandamus lies to a municipal corporation to compel the authorities to admit to the legal possession of any public office in the corporation. Willock on Corp. 368, §§ 74, 75. So when he 1ms been unjustly removed or suspended, a mandamus lies to compel his restoration. Ibid. 377., § 96.
If another has improperly intruded into or usurped his office, the remedy is against the. intruder by quo warranto or other proceeding for his removal, or by action for the emolument.
But whatever may be the proper form of the remedy, or whether there be any, it is clear that an action of debt upon contract against the city is not the appropriate mode of redress.
This conclusion renders it unnecessary to express any opinion upon the other assignments of error.
This was a suit brought by Gear, below, against the defendants, to recover salary as a policeman from the 23d of June, 1855, to the 23d June, 1857.
The jury found a verdict for the plaintiff below, which is brought here upon exceptions.
The first taken was that the court below permitted the plaintiff to give in evidence an ordinance of the defendants, passed June 18lh, 1855, to establish a night police. The objection to its admission was, that the ordinance had not been published for twenty days, as required by the charter. The charter (Pamph. Laws 1855, p. 460,) provides that every ordinance shall be published for the space of twenty days, in at least one newspaper, before it shall go into effect. By the other evidence, it appeared that this ordinance was published in one newspaper on the 23d June, the 30th June, and the 7th July, 1855.
It was contended, by the defendants, that there should have been twenty days between the first, and last insertions. But I do not so understand the act. It does not prescribe that it shall he inserted in the paper by periods, either daily or weekly, hut merely says it shall he published in a paper twenty days before it goes into effect. It does not provide, or was it intended to provide, for more than one insertion. It can only mean that the ordinance shall not he binding on the citizens until twenty days after its publication in its first number.
The act says that sheriffs and other officers shall give notice of sales of real estate for sixty days in five of the
I see no error in this ruling. As to the second and third .exceptions, I concur in the opinion of the Chief Justice.
The fourth exception is, that the defendants offered in evidence the written resignation of the plaintiff, as policeman, made in January, 1856, which the court overruled. It was overruled upon the ground that when offered there was no evidence connecting the plaintiff and defendants with the paper as an actual resignation, tendered by the one and accepted by the others.
By the charter, (Pamph. Laws 1855, p. 461, § 37,) it is provided that resignation of any office held under the council, by the provisions of this act, may be made to the council.
Samuel W. Carey, the city clerk, says: I have seen his (the plaintiff’s)'resignation as policeman on file; one of the signatures to it is his; I know his handwriting; it is in my office; it was left with me by the mayor, January or February, 1856; I was then city clerk; I hold it as an individual, not as clerk; I considered it as not given me as clerk, because I so construed the words of (he mayor.
Cornelius V. Clickuer, defendant’s witness, testified that he was mayor in January, 1856, and Carey, city clerk. The resignation of the plaintiff was handed me, as mayor; I handed it to the city clerk, to file in his office; I intended to file it with him as an official paper.; I think it was handed me by a man of the name of Whitlock; I filed it because I wanted to preserve it as evidence; I told Carey to file it in his office when I handed it, to him; I did nothing with the paper, but handed it to Carey; it was handed to me about the time it bears date; after I handed Carey the resignation they passed the resolution disbanding the police.
It was further in evidence that after this resignation was thus filed in the office of the council, they resolved
Títere is certainly ample evidence connecting the plaintiff with it, for he signed it, and delivered it to the mayor to deliver to the council.
The complaint can only be that there was no evidence of its being accepted by the-council. If the mayor had actually handed it to the council, and they had handed it to the clerk to be filed, it would certainly have been an acceptance. But the mayor, supposing it. would answer the same purpose, handed it to the clerk, and he filed it, and there it has ever since remained. Now, might not the jury infer that the clerk informed council that such a paper was filed, and if they permitted it to remain, it would be a virtual acceptance? Could not the jury infer that the council knew what was filed in their own archives, and if they did, and permitted it to remain, it would be a virtual acceptance ?
Again, was not the actual passage by the council of a resolution disbanding the whole police force for want of funds, their service of it on the plaintiff, and demanding the emblems of office, and his surrendering them on such demand, the plaintiff presenting no more bills, his going into other business, his ceasing entirely to act as policeman, some evidence that both parties were connected with this resignation ?
But, again, by filing his resignation in the office of the defendants, and leaving it there, the plaintiff gave the defendants the right to accept it at, any time before it was countermanded. Was not the fact that the plaintiff left the resignation on file, his ceasing to act as policeman,
Here both parties are doing their best to dissolve the connection between them; the one sends in his resignation, throws down his insignia of office, ceases entirely thenceforth to act, and goes into other business ; the other retains the resignation on their files, passes a resolution discharging not only the plaintiff, but the whole squad ; sends for and receives from him the emblems of office. Nothing further is done for a year, and then the plaintiff sues for that year’s salary.
I think this resolution of the 9th of January, 1856, discharging the police force, if not good as a formal removal from office under the provisions of the charter, is at least, under the circumstances, good as an acceptance of the resignation.
After the evidence was closed, the defendants called upon the court to charge that the plaintiff had not made out a case which would entitle him to recover, which the court declined to do.
The case made by the plaintiff was, that the defendants, in June, 1855; passed an ordinance that there should be appointed a chief of police and six policemen, their term of office to be two years, unless sooner removed in the manner provided for in the charter, the salary of the policemen to be $150 per year, payable monthly ; the policemen to be considered always on duty, unless temporarily absent by leave of the chief, for repose and meals; his appointment a few days after under this ordinance; his service and payment under this appointment until the 10th of January, 1856. That, on the 9th of January, 1856, the defendants passed the following resolution :r That the cily clerk be instructed to notify the chief of police and the five assistant policemen that their services thereafter will not be required, in consequence of the means voted
This claim is therefore not for actual service. But the plaintiff contends that he was appointed for two years, at a salary; that he was hindered from performing the service, after the 10t.h of January, 1856, by the wrongful act of the defendants, and that he is consequently entitled to recover his salary for the whole two years, or until the ordinance expired by its own limitation.
To this the defendants reply that the plaintiff was either legally removed from office by the resolution of the 9th of January, or if not, his ceasing to perform the duties of his office was voluntary, and so, in either case, not entitled to his salary.
First. Was the plaintiff legally removed from office? If he was, then he cannot claim his salary upon any notion that there was a contract; for if he was legally removed by the council, the contract was defeated upon its own terms. It was in its very creation defeasible upon removal.
Was the resolution of the 9th of January, and its service upon him, a legal removal ? Was it so in terms? It provided that the clerk notify the plaintiff that his services hereafter would not be required. This is, I believe, the usual official language of the removing, power and so universally understood; at any rate it was so understood by the plaintiff, for he puts his case upon the ground that it was defacto a discharge.
Had the council the power to make this removal? The 38th section of the charter (Pamph. Laws 1855, p. 462,) provides that the council, for cause, may remove any person appointed by them under the provisions of this act,
This proceeding was intended to be one under the said 38th section of the act. Such proceedings were not intended to be submitted to the mayor, and for this, among many other reasons, viz., that the proceedings intended to be submitted to the veto power are only those which may be passed in the first instance by the mere majority of the council, whereas the proceeding in question can only be so passed by a vote of two-thirds, so that the submitting this resolution to the mayor was a merely void act; it did it neither good or harm. If a removal at all under the 38th section, it was not the less a removal because it had been submitted to the mayor.
It is contended, in the next place, that the council can only remove for cause.
The act says the council, for cause, may remove. The cause assigned in this resolution is, “ the means voted for the purpose are exhausted.
It is contended by the plaintiff, in the first place, that by using the terms “ for cause may remove,” the legislature intended to erect the council into a kind of judicial tribunal, which could not get jurisdiction of the person without notice. Such could not have been their intent. If they had so intended, they would probably have given some more provisions for its regulation, some provisions for serving notice, of compelling the attendance and swearing of witnesses; they would, at least, have used the usual terms in organizing sucha tribunal. The expression is not “for cause shown,” but simply “ for cause.”
In the next place, the legislature was dealing with the relations between the superior and inferior executive offi
That the legislature, by these words, “ for cause,” did not intend a judicial proceeding requiring notice, is evident from the connection in which they use these words in the 15th section of the act. In defining the powers of the mayor, it says he shall have power to suspend any policeman for cause, to bo assigned to the council in writing. Could it ever have been intended that the power to suspend could never attach to the mayor, until he had given notice and tried the truth of the cause? Is the policeman to be first tried by the mayor before he is suspended, and then again by the council, before he is removed ? I am of opinion that it was not the intention that notice should be a condition precedent to the exercise of the power of either suspension or removal.
It is next contended, that even if there could be removal without previous notice, yet that the cause here assigned, viz., that the money was exhausted, is not such a cause as to raise the power; that the cause contemplated by the statute is only a certain class of causes, such as misbehavior in the officers.
It will be recollected that this is not a question upon review by writ of error or certiorari whether the assigned cause is sufficient, but whether the existence of any particular kind of cause is necessary to the exercise of the power.
The statute prescribes no particular kind of cause; it is merely “ for cause,” not for cause shown. It is not, as
It might well be questioned whether the want of funds is not good cause within the meaning of the act. At any rate, we cannot well conceive a more satisfactory one to all parties. But however that may be, it is not within our jurisdiction to question it collaterally.
I am of opinion that the resolution of the 9th January, 1856, and its service upon the plaintiff, was a lawful removal of him from office, and that., consequently, the plaintiff showed no right of action.
Nor is the case altered by considering the resolution as a repeal of the ordinance of June, 1855; for if a valid
But supposing that the plaintiff is right in his view, and that this resolution is absolutely void, is he then any better off?
The resolution of removal was either valid, or if void, the plaintiff ceased voluntarily to perform the duties of his office, and so not entitled to the salary. It is not pretended that he was prevented from serving by the physical force of the defendants ; but that, upon this void resolution of the council being shown to the policemen, they voluntarily threw down their emblems of office and disbanded. If the plaintiff had been discharged or prevented from serving by the defendants, or by anybody authorized by them, ho might, perhaps, have been entitled to his salary without performing its duties; but in the aspect he is now claiming it, he insists upon the contrary of all this. The defendants arc one body, the council is another, and the plaintiff insists that not the defendants, but a third body, to wit, the council, came to him with a void order of this third body, and discharged them ; that the council had no right to make such order ; that it was in fact a void act; that the act of the council was no legal discharge. Then why did they not go on? Why throw down their stars and disband ?
The plaintiff likens his case to that of private parties. As where one employs another to work for him for two years, and at the end of the first year discharges him without legal cause. The cases might have been, perhaps, similar here, if the plaintiff had been discharged by the party for whom he was doing the service, by the party who legally employed him, to wit, the defendants.
Justices Ogden and Whelpley concurred.
Cited in Price v. N. J. R. R. & Trans. Co., 2 Vr. 234; Joslin v. N. J. Car Spring Co., 7 Vr. 147.