State Ex Rel. Kinsland v. MacKey

Winborne, J. These are the determinative questions on this appeal: Where the Legislature has granted to the governing body of the town of Canton the power to appoint a tax collector for said town, but has not *511 fixed the term of office, and pursuant thereto a tax collector has been appointed, has the governing body which made the appointment the power at its pleasure to remove the appointee ? If so, when the governing body has attempted to fix a definite term for which the appointment is made, may such power be exercised ? "We are of opinion and hold that both questions must be answered in the affirmative. The points arise upon exceptions well taken to these portions of the charge: “And if you find they did fix a definite term, that is to say, if you find they did elect J. D. Mackey for a term to expire with their own terms, for two years, or whatever you find the time to be, then he could not be removed by appointing another man in his place, but only could be removed by preferring charges against him and giving him an opportunity to be heard and to make a defense against the charges.” Exception 38. “But if Mr. Mackey, on the night of June 5, 1939, was elected for a definite term, that is, for a term extending throughout the term of the board of aldermen and mayor, then it could not be terminated except upon charges preferred and a hearing had, as I have heretofore explained to you, and if you find that he was elected for such definite term he would be entitled to hold the office and the issue should be answered No.’ ” Exception 42. The applicable rule, which appears to have been generally and almost universally adopted, is that where the term of office of a public officer is not prescribed by law, the office is held during the pleasure of the authority making the appointment. Likewise, the general rule is that in the absence of all constitutional or statutory provision for the removal of such public officers, the power of removal is incident to the power of appointment, and is discretionary and may be exercised without notice or hearing. 22 R. C. L., 562; 19 R. C. L., 935; 43 C. J., 641. McQuillan on Municipal Corporations (2nd Ed.), Revised Vol. 2, p. 228, sec. 509 (489), Annotations 91 A. L. R., 1097. These general rules have been applied in well considered decisions by the courts of many states to cases in which the appointing authority has attempted to fix a definite term for the particular office. See Annotation 91 A. L. R., 1097. The trend of these decisions is that the implied power of the appointing authority to remove at pleasure an officer whose term of office is not prescribed by law cannot be contracted away so as to bind the appointing authority to retain an appointee for a fixed period. "Where an office is held during the pleasure of the appointing authority, a removal may be either express, by notification to the officer, or implied, by the appointment of another person to the same office. 19 R. C. L., 935. *512 Under these principles, no definite term having been prescribed by statute for the office of tax collector for the town of Canton, the appointment of defendant at the regular meeting of the board of aldermen on 5 June, 1939, entitled him to hold the office only at the will or pleasure of the board. And this is true, even though it be conceded that the board by resolution specified that the appointment be for a definite term. Hence, in the absence of constitutional or statutory provision therefor, the board, under the power of removal incident to the power of appointment, had the power to remove the defendant at any time without cause, notice or hearing. The appointment of another, the plaintiff, to the position of tax collector, of which fact defendant had notice, operated as a removal of defendant. In view of the general rule of law applicable to the facts of this case, it appears unnecessary to advert to exceptions relating to the admission of parol evidence as to what transpired in the meeting of the board at which defendant was appointed, or as to evidence of custom, or to the charge in regard thereto. In accordance with the principles of law here stated, let there be a New trial.