§ 171. But where the services to be performed are professional or 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. 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, 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.'

quently. Iowa City v. Foster, 10 Iowa, 189; supra, sec. 151. In Commonwealth v. Bacon, supra, it was held that an ordinance which reduced the salary of the mayor after the commencement of his term, was valid. The court said, "this cannot be considered in the nature of a hiring for a year, because it was not obligatory on the mayor to serve out the year." Though ordinance may fix term and compensation of officer, the office may be abolished, if its abolition be not forbidden, or salary reduced. There is no contract between corporation and officer that the service shall continue, or the salary not be changed. Waldraven v. Memphis, 4 Coldw. (Tenn.) 431, 1867; Hoboken v. Gear, 3 Dutch. (N. J.) 265, 1859. General power to a corporation to fix the compensation of its officers does not authorize it to take away the fees of an officer, which are specifically fixed by the same charter. Carr v. St. Louis, 9 Mo. 190, 1845. The legislature may provide that the salary of an officer may be fixed by one board, e. g., a common council, though it is payable by another, e. g., a county, or board of supervisors, and in that case, the latter have no authority to change it when once fixed. People v.

Auditors of Wayne, 13 Mich. 233.

1

Chase . Lowell, 7 Gray, 33, 1856; and see Caverley v. Lowell, 1 Allen (Mass.) 289, 1861, 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.

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

§ 172. 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 soon introduce intolerable mischief. The rule, too, should be very 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.'

Orleans, 14 La. An. 330, 1859. 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.

1 Per Potts, J., in Court of Errors and Appeals, Evans v. Trenton, 4 Zabr. (N. J.) 766, 1853. See, also, Andrews v. United States, 2 Story C. Ct. 202; Palmer v. The Mayor, &c. of New York, 2 Sandford (N. Y.) 318; Bussier v. Pray, 7 Serg. & Rawle, 447; Angell & Ames on Corp. sec. 317; Gilmore . Lewis, 12 Ohio, 281; Detroit v. Redfield, 19 Mich. 376, 1869.

A salaried officer of a public corporation has no claim for compensation extra his salary, on the ground that the duties of his office have been increased, or new duties added since the salary was fixed. People v. Supervisors, 1 Hill (N. Y.) 362; Wendell v. Brooklyn, 29 Barb. 204; Palmer . Mayor, &c. of New York, 2 Sandf. (N. Y.) 318. Special instances, where a claim for compensation, in the absence of express provision, has been sustained, where the law has required a public officer to perform a duty, attended with trouble and expense, clearly outside of his regular official duties, see People v. Supervisors, 12 Wend. 257; Bright . Supervisors, 18 Johns. 242; Mallory v. Supervisors, 2 Cowen, 531; Ib. 533; Detroit v. Redfield, 19 Mich. 376, 1869. This subject is discussed in White . Polk County, 17 Iowa, 413.

Where salary is fixed by ordinance, it cannot be changed by a commit

173. Not only has an officer, under such circumstances, no legal claim for extra compensation, but a promise to pay him an extra fee or sum beyond that fixed by law is not binding, though he renders services and exercises a degree of diligence greater than could legally have been required of him.'

Liability of Corporation to the Officer.

174. Where an officer of a municipal corporation, elected by the people for a specified term, is improperly removed by the city council, he may sue the corporation for his salary and perquisites for the time intervening his removal and the expiration of his term. It is a defence to

tee or individual members of the corporation; nor will their promise to pay extra compensation for the duties of the office be binding on the corporation. But for services performed by request, not part of the duties of his office, and which could as appropriately have been performed by any other person, such officer may, in proper cases, recover a just remuneration. Evans v. Trenton, 4 Zabr. (N. J.) 764, 1853. S. P., Detroit v. Redfield, 19 Mich. 376, 1869; Converse v. United States, 21 How. 463. For services required by ordinances, the city attorney is entitled to the compensation fixed by ordinance, and no other; and the mayor, by virtue of his duty to see that the "ordinances are duly enforced," cannot bind the corporation to pay more than the fixed salary or compensation, and this duty does not authorize that officer to employ assistant or independent counsel in any case, at the expense of the corporation. Carroll v. St. Louis, 12 Mo. 44, 1849. Further, as to liability of city to attorneys, see the chapter on Contracts.

'Heslep v. Sacramento, 2 Cal. 580 ($10,000 voted to mayor for meritorious services, held void); Hatch v. Mann, 15 Wend. 44; reversing S. C., 9 Ib. 262; approved Palmer v. Mayor, &c. of New York, 2 Sandf. 218; Bartho v. Salter, Latch, 54; W. Jones, 65; S. C. Lane v. Sewell, 1 Chitty, 175; Ib. 295; Morris . Burdett, 1 Camp. 218; 3 Ib. 374; Callaghan v. Hallett, 1 Caines (N. Y.) 104; S. C., Col. & C. Cas. 179; Preston v. Bacon, 4 Conn. 471; Shattuck v. Woods, 1 Pick. 175; Bussier v. Pray, 7 Serg. & Rawle, 447; Carroll v. Tyler, 2 Har. & Gill, 54; Smith v. Smith, 1 Bailey, 70; Debolt v. Cincinnati, 7 Ohio St. 237; Pilie v. New Orleans, 19 La. An. 273. The principle operates to deprive a public officer, or an officer of a municipal corporation, of a claim for a reward offered for a service which is embraced in his official or legal duties. Gilmore v. Lewis, 12 Ohio, 281, where a constable who arrested a thief was held not entitled to a reward offered by the defendant. S. P., Pool v. Boston, 5 Cush. 219. See ante, chap. VI. sec. 91.

Stadler v. Detroit, 13 Mich. 346, 1865; Shaw o. Mayor, &c., 19 Geo. 468, 1856. The court, in considering the rule of damages in such a case, hold

the corporation that the officer was legally removed; but if he was illegally removed, it is no answer to the action that the corporation, in making the removal, acted judicially, and therefore is not liable for the error it committed.'

that the officer cannot recover of the corporation counsel fees for defending himself against the charges preferred against him, but may recover such "damages as necessarily resulted from nis amotion from office, viz: his salary and perquisites." 19 Geo. 468, supra. But the corporation, it is sug gested, may recoup the same as individuals who improperly dismiss servants employed for a determinate period. 2 Greenl. Ev. sec. 261a. But see United States v. Addison, 6 Wall. 291; Hoke v. Henderson, 4 Dev. 1.

Shaw . Mayor, &c., 19 Geo. 468, 1856; Shaw v. Mayor, &c., 21 Geo. 280; see S. C. Mayor, &c. v. Shaw's Administrator, 25 Geo. 590. In the case last cited, it was decided that if the removal of a city officer be for a specfied cause, not warranting the removal, and the officer sue the corporation for his salary, as a defense to such action it may aver and prove other matters, good in law, to justify such removal. In thus holding, the court say: "If his term of office had not expired when this suit was instituted, and he had moved for a mandamus to restore him, instead of bringing an action for his salary, the court would not have interfered, if good cause for his removal could have been shown, although he may have been removed without notice. Rex v. Mayor, &c., 2 Cowp. 523; The King . The Mayor, &c., 2 Term R. 182”—per McDonald, J.; 25 Geo. 590. 592. See Hoboken . Gear, 3 Dutch. (N. J.) 265. An incumbent was appointed by the aldermen and removed by the mayor, who nominated a successor; the incumbent's salary did not cease until his successor was confirmed. White v. Mayor, &c. of New York, 4 E. D. Smith, 563, 1855.

Declaring an office and the prospective fees of the officer not to be property, and that the right to fees grows out of services performed, it was decided by the Court of Appeals that a municipal officer who had been kept out of his office and had not performed its duties, could not maintain an action against the city to recover the amount of fees accruing from the office. Smith v. New York, 37 N. Y. 518, 1868; Hadley v. Mayor, 33 N. Y. 603, 607, per Denio, C. J.; Benoit v. Wayne County, 20 Mich. 176, Cooley, J., dissenting. It has, however, several times been decided in California that the salary annexed to a public office is incident to the title to the office, and not to its occupancy and exercise, and that the right to compensation is not affected by the fact that an usurper, officer de facto, has discharged the duties of the office. Dorsey v. Smith, 28 Cal. 21; Stratton v. Oulton, 15. 44; Carroll v. Siebenthaler, 37 Ib. 193, 1869; approved Meagher v. County, 5 Nev. 244, 1869. See People v. Miller, 24 Mich. 458, 1872; Benoit . Wayne County, supra; Philadelphia v. Given, 60 Pa. St. 136, per Thompson, C. J.

The legal incumbent of a municipal office rendering service is entitled to compensation until he has actual notice of his removal. Jarvis v. Mayor, &c. of New York, 2 N. Y. Leg. Obs. 396. As to notice: Field . Common

Liability of the Officer to the Corporation and to Others.

$175. Public officers, elected pursuant to statute by a municipal corporation, are not the servants or agents of the corporation in such a sense as will enable the corporation, in the absence of a statute giving the remedy, to recover damages against such officers for negligence in the discharge of their official duty. If the corporation can recover at all in such an action, it can only be for want of fidelity and integrity, not for honest mistakes.' To protect the

wealth, 32 Pa. St. 478, 1849; Ex parte Ramshay, 83 Eng. C. L. 174, 1852; Ex parte Hennen, 13 Pet. 230; Queen v. Governors, &c., 8 Ad. & El. 682; Page v. Hardin, 8 B. Mon. (Ky.) 648; Bowerbank v. Morris, Wall. C. C. R. 118. In The City v. Given, 60 Pa. St. 136, the plaintiff acted as city commissioner for some months, when it was decided that he had not been duly elected, and, in a suit brought for his salary, it was held that he could not recover, because he had not qualified by giving security. In an action by the rightful officer on a supersedens bond given in a quo warranto proceeding by an intruder, the measure of damages is the full amount of the salary (where the office has a fixed salary) received by the intruder pending the operation of the supersedeas. United States v. Addison, 6 Wall. 291. See people . Miller, 24 Mich. 458, 1872.

Respecting liability of an intruder to the officer de jure for salary and fees received, and when an action will lie for money had and received. Glascock . Lyons, 20 Ind. 1; Douglas v. State, 31 Ind. 479; Dorsey v. Smythe, 28 Cal. 21; Stratton v. Oulton, Ib. 44; City v. Given, 60 Pa. St. 136; Allen v. McKean, 1 Sumn. 117; State v. Sherwood, 42 Mo. 179; Hunter c. Chandler, 10 Am. Law Reg. (N. S.) 440, and note; Boyter v. Dodsworth, 6 Term R. 681; Sadler v. Evans, 4 Burr. 1984; People v. Miller, 24 Mich.

458.

1 Parish in Sherburne v. Fiske, 8 Cush. 264, 266, 1851, opinion by Dewey, J.; cites White v. Philipson, 10 Met. 108; Trafton v. Alfred, 3 Shepl. 258; Kendall v. Stokes, 3 How. 87; Commonwealth v. Genther, 17 Serg. & Rawle, 135; Wilson v. Mayor, &c. of New York, 1 Denio, 595; Hancock v. Hazzard, 12 Cush. 112; Minor v. Bank, 1 Pet. (U. S.) 46, 69. Where a surveyor of highways has, by law, a discretion as to the kind of repairs, and exercises his best judgment and acts in good faith, the corporation for which he acts is bound, and cannot defeat his recovery for the price of materials furnished by evidence to show that the repairs were not. in fact, necessary. But it would be otherwise if fraud or corruption were shown. Palmer v. Carroll, 4 Fost. (N. H.)-314, 1851. See, also, People v. Lewis, 7 Johns. 73; Seaman . Patten, 2 Caines, 312.

Personal liability of municipal Councillors to the corporation for misappropriation of its funds: see municipality of East Nissouri v. Horseman, 16