147 P. 745 | Ariz. | 1915
Lead Opinion
The only evidence in the record tending to prove that the defendant, town of Tempe, discharged plaintiff as its street sprinkler, and thereby violated any contract relation, is the testimony of the plaintiff as follows:
“The marshal told me they were going to take the wagon. I was ordered off. . . . George Nichols was the one employed by the council. ’ ’
The plaintiff does not state who ordered him off; whether the marshal, of his own volition, ordered him off, or whether the town council ordered him off the wagon and the marshal was delivering its order. The town could not speak on the matter of discharging plaintiff except at a legal meeting. The corporate act of the municipality is performed through its council, and the minutes of its meeting are the evidence of the corporate act. No effort seems to have been made by any party to produce the evidence of such act. Perhaps no action was taken. Certainly, when the marshal told plaintiff that the council were “going to take the wagon,” the inference is irresistible that no action had then been taken, but was contemplated. So far as the evidence goes, the marshal did not claim he was delivering plaintiff notice of any action theretofore taken by the council, nor did he claim to be acting; in obedience to the council’s orders in informing plaintiff of the council’s intended action. At most, the information imparted had reference to the council’s intention to discharge plaintiff, but, until some official act toward carrying out that inten
In volume 2 of Dillon on Municipal Corporations, fifth edition, section 775, it is said:
“ Public corporations may by their officers and duly authorized agents make contracts within the scope of their legislative powers the same as individuals and other corporations, in matters that appertain to the corporation; being artificial persons, they cannot contract in any other way. Public officers or agents are held more strictly within their prescribed powers than private general agents; and a contract made by a public agent within the apparent scope of his powers does not, if there be no estoppel, bind his principal in the absence of actual authority. A distinction has been held to exist in certain cases at least between the acts of an officer or agent of a public municipal corporation and those of an agent for a private individual. In cases of public agents the public corporation, -it is said, is not bound unless it manifestly appears that the agent is acting within the scope of his real and lawful authority, or he is held out by the authorized and proper officials or body of the municipality as having authority to do the act, or is employed in his capacity as a public agent to make the declaration or representation for the government. ’ ’
To work a breach of a valid contract by the municipality through the acts of its officers, and thereby fix á liability, would require no less authority. The town marshal must have been acting within the scope of his duty as an agent of the municipality to effectively order plaintiff off the wagon and discharge him from the service of the defendant, and plaintiff was chargeable with notice of the marshal’s authority as an officer. As an officer, the marshal had no authority to
The evidence of the breach of this contract is far from' sufficient to sustain a judgment. The evidence sufficiently establishes the fact that the town marshal discharged the plaintiff, but his authority to do so is absent. The plaintiff must, therefore, be deemed to have abandoned the contract upon receiving information, through the marshal, that the council was going to take the wagon, and when he delivered the wagon to the marshal upon the marshal’s order. For this reason we are justified in vacating the judgment; but, as the parties and the trial court seem to have proceeded upon the theory that the evidence was sufficient to establish a breach of the contract at some time by the .town, we prefer to base our decision upon another reason, and one affecting the initial relation of the parties.
At' the close of the evidence the defendant moved for judgment upon the grounds that the contract pleaded and in evidence is one for services to the defendant town, and that the members of the town council in office at the time the contract was made had no power under the law to enter into such contract as would bind the city and the council succeeding them in office.. This position was assumed and consistently
Article 3, section 1, subdivision 3, Act No. 72, Laws of 1893, confers the power upon counoilmen “ ... to have . . . the exclusive control over the streets, alleys, avenues and sidewalks of the town; ... to widen, extend, straighten, regulate, grade, clean or otherwise improve the same. ...”
By article 4, section 4, Act No. 72, swpra, the common council “may appoint, from time to time, all officers and agents of the town, whose appointment is not herein provided for, and remove the same. ’ ’
Exclusive control over the streets, to clean and otherwise improve them, fairly includes the exclusive right to cause the streets to be sprinkled. To accomplish this beneficial purpose the council must necessarily provide or appoint from time to time officers and agents to perform the service; provide the instrumentalities to accomplish this purpose. The officers or agents so appointed, while performing the duty of their appointment, are under the exclusive control of the common council making the appointment. The appointment of the street sprinkler for a definite term is not provided for by Act No. 72, but the right to appoint is incident to the performance of the duty required, and, having been appointed by the common council, he was subject to be removed by the council at its pleasure, unless the council, in appointing him, had the power to contract with him and bind the town to retain him a specified term.
This was attempted in this instance. The evident purpose of this contract was to bind the incoming elected council to retain in its service one selected, for that particular duty by the outgoing council. The contract was intended to prevent the new council then elected from appointing another person, a person of its choice, to sprinkle the streets of Tempe for one year at the least. Such is the effect of this contract if it is a valid contract of the town. If the contract is valid, the new council was thereby deprived of the exclusive control-over the streets, in the particular mentioned, from June 13,-1912, to June 1, 1913, so long as that work is performed by plaintiff satisfactorily to the street supervisor. By the terms
A well-recognized exception to the rule exists applicable to contracts in reference to matters which are personal to the board in their nature, and the contract limits the power of the succeeding members to exercise a discretion in the performance of a duty owing to the public. This exception to the rule is based upon the grounds of public policy. Jay County v. Taylor, 123 Ind. 148, 7 L. R. A. 160, 23 N. E. 752; Hancock v. Craven County, 132 N. C. 209, 43 S. E. 634; Shelden v. Butler County, 48 Kan. 356, 16 L. R. A. 257, 29 Pac. 759; Coffey County v. Smith, 50 Kan. 350, 355, 32 Pac. 30; Millikin v. Edgar County, 142 Ill. 528, 18 L. R. A. 447, 32
In the last ease cited the court said:
“The rule established by the decision of the lower court is that public officers upon whom is devolved the duty of selecting persons to render daily routine services of a very common character about a public building have the power to enter into contracts with these persons, which, both as to terms of service and compensation, will bind the public, and will deprive their successors in office from making any changes, except for such causes as would relieve the master from the obligations of a contract entered into with a servant. No authority can be found which will sustain such a rule of law.Should this doctrine prevail, the committee in question could have contracted with plaintiff for his services as custodian for a period of three, four or five years, . . . and the compensation to be paid would,' if the right be conceded at all, necessarily be within the somewhat unlimited discretion of the committee.- Authorized to appoint a janitor, a custodian, and, in general language, such other employees as may be deemed necessary, the committee could, on any day during the year, enter into a time contract with any employee, from janitor down to scrubwoman, for no distinction can be made, based upon the kind of work performed by the employee. If a custodian can be permitted to bind the public with a contract, so can the most menial employee about the premises. Under this doctrine, places with excessive salaries attached could be made for a host of political friends by the members of an outgoing committee, and their successors would be powerless — practically unable — to change the force, or to drop persons not needed, or to reduce their compensation. A rule of this kind in the public service would prove intolerable. It is not even the law relating to public officers, for, where the tenure of an appointive office is not prescribed by the Constitution or by statute, the appointee holds at the will of the appointing power and of himself, and he may be removed ■by the former at pleasure. In re Hennen, 13 Pet. 225, 255 [10 L. Ed. 136, 151]; People v. Board of Fire Commrs., 73
The facts of this case place its decision within the exception to the general rule, and the contract sued upon is therefore invalid as against public policy.
The removal of the plaintiff by the incoming town council was not a violation of the contract, but was a valid exercise of the corporate power. In Mack v. New York, 37 Misc. Rep. 371, 75 N. Y. Supp. 809, the court lays down this rule:
“The rule is that where the power of appointment is conferred in general terms, and without restriction, the power of removal in the discretion and at the will of the appointing power is implied, and always exists, unless restrained and limited by some other provision of law” — citing many cases.
The court erred in overruling the motion for judgment for the reasons the plaintiff had no valid binding contract with the defendant, and therefore could suffer no injury by reason of defendant’s refusal to perform; and no injury could result from defendant’s ordering plaintiff discharged, notwithstanding the instrument is in form a contract of employment for one year.
The judgment is vacated and the cause remanded, with instructions to dismiss.
FRANKLIN, J., concurs.
Dissenting Opinion
Dissenting. — All the learning of the majority opinion about the discharge of appellee is.aside from, and foreign to, any question involved or discussed by either party to this appeal. Neither in its answer nor by its' evidence does the appellant deny or combat the discharge by it of the appellee. On the contrary, its defense is based on the theory that the contract alleged did not bind it. On the trial it was assumed by both parties that appellant had discharged the appellee and placed another in his place; the former asserting it to be within its rights to do so. The insufficiency of the evidence was not raised by appellant in his motion for a new trial, nor is it assigned as error on appeal. It was not a dis
That the city council, as such, was charged with the duty of caring for the streets of appellant, and to that end empowered to engage the services of appellee, cannot well be questioned. He is not by virtue of such employment an “officer or agent” of the city, but a servant or employee. In 28 Cyc. 585, it is said:
“Generally, an officer takes an oath of office, while a mere agent or employee does not. The duties and services of a mere employee are purely ministerial, and he is not clothed with discretion nor with power to represent or bind the corporation. A municipal agent holds a position of trust, responsibility, and discretion. His relation is fiduciary, and he may contract with third persons in the name of the corporation, but he is distinguished from an officer in the fact that his position is not permanent, but temporary, and for a special object, and this distinction is often an important one. ’ ’
There is no pretense or suggestion that there was any fraud or collusion, or that the contract was unfair or unreasonable, or that appellee was an unfit person for the work, or that he was not faithfully performing his part of the contract. His employment to sprinkle and clean the streets did not deprive the incoming council of its rights of superintendence over such work. If he faithfully performed his engagement, the council’s duty to the, public was as well performed through him as it could be through any other person. It is not a case of personal or professional service entitling the council to choose for itself persons to whose professional honesty, skill, and ability are to be delegated or confided important functions of the council. It is merely to drive a sprinkling wagon and clean the garbage from the streets under the supervision of the supervisor of the streets. He had done this for the year ending May 31, 1912. The new council was not to take office until June 13, 1912. The council, regardless of its personnel, had the power to employ someone to do this work of sprinkling its streets and earing for its garbage. I do not think this power was necessarily limited to the 13 unexpired days of their term, so long as they acted in good faith and for the best interests of the city.
‘ ‘ Has the' hoard of county commissioners the power to make a contract with an employee which extends beyond the expiration of the terms of office of certain members of the board ? ’ ’
The court said: “While there is some apparent conflict in the authorities, it is reasonably clear that the weight of authority is to the effect that the board has such power. ’ ’
After discussing and distinguishing many of the decided eases for and against the proposition, the court concludes with this statement:
“The morgue-keeper is an employee, and not a public officer. His selection and employment for a definite and reasonable term in no manner interferes with the proper discharge of the duties of the board of county commissioners, nor, does it deprive the board of full power and proper control over the things and matters submitted to its' care by the statutes. It is conceded that the person employed by the board on December 31,1908, was and is a suitable person to perform the'duties required to be performed by him. Having the power at that time to employ a morgue-keeper, there is no implied limitation upon that power which restricts the possible term of employment to the time when any member or members of the board shall go out of office. The contract made in this instance was fair and reasonable, and no question of fraud or collusion is even suggested. Such being the facts, we can conceive of no principle of public policy which is violated by the contract in question. The contract being thus valid, the board, after the new members qualified, had no power to revoke or rescind it without cause being shown. "
This case is annotated in L. R. A. 1915E, 581, on the subject of the power of a board to appoint officer or to make a contract for term extending beyond its own term. See, also, note in 29 L. R. A. (N. S.) 652, on the same subject.