Town of Tempe v. Corbell

CUNNINGHAM, J. 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 — 6 — tion was performed, the corporation was not chargeable with any breach of the alleged contract. If plaintiff acted upon the information of the intention of defendant to discharge him, and gave up his employment because the town marshal ordered him off the wagon, and the council had actually made no such order, nor given the marshal such instructions, then the marshal ’s order was without authority and ineffective for any purpose. The corporation acts only through its agents, that is, its officers. In order to. bind the principal by an act, the agent (here both the council and the marshal) must act strictly within the scope of his agency. 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 — 7 — discharge the plaintiff and thereby cause a breach of the town’s contract of employment of plaintiff. The town, acting through its common council, could or might have discharged the plaintiff, and, if the contract was a binding one, thereby fix a liability on the town by its breach. The evidence of plaintiff tends to prove that plaintiff abandoned the service, under the contract, upon being informed that “they” were going to take the wagon, and acquiesced in the marshal’s order to deliver the wagon. If the marshal was acting under orders from the defendant, the authority could have been shown either by the corporate records, by the members of the council, or, perhaps, by the marshal’s own testimony, if no objection to the same was interposed that would exclude his testifying and, in fact by any competent evidence, but neither course was attempted to prove the fact of authority, and certainly an intimation as to a supposed action to be taken by the council was not sufficient to work a breach of a valid contract. Certainly there is no evidence that the town council had theretofore or thereafter acted on the matter as the marshal informed plaintiff they were going to act. 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 — 8 — asserted at all stages of the suit, and is preserved for decision on this appeal. The questions of the power of the common council to make this contract and to remove plaintiff during the contract period are thereby raised. 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 — 9 — of the contract the street supervisor had delegated to him the right to determine whether the duty is properly performed by the plaintiff, and, if so, the council is powerless to control the matter of street sprinkling as to its manner or means of performance, and the council was thereby deprived of an express statutory right to control the streets and to remove its appointee. For one year all the voice the council had in the matter of control over the streets and their sprinkling was to pay plaintiff $85 per month. The street supervisor and street sprinkler controlled all other matters incident thereto. The council, composed of the outgoing members, placed the matter of sprinkling the streets beyond the control of the corporation. We are of opinion such contract is void as against public policy. The general rule, supported by a number of authorities, is that a contract extending beyond the term of office of the members of a public board, such as a board of county commissioners, a municipal board, or other like controlling body representing a municipal corporation, is, if made in good faith, ordinarily a valid contract. Liggett v. Kiowa, County, 6 Colo. App. 269, 40 Pac. 475; Pulaski County v. Shields, 130 Ind. 6, 29 N. E. 385; Webb v. Spokane County, 9 Wash. 103, 37 Pac. 282; Reubelt v. Noblesville, 106 Ind. 478, 7 N. E. 206; Wait v. Ray, 67 N. Y. 36; Picket Pub. Co. v. Carbon County, 36 Mont. 188, 122 Am. St. Rep. 352, 12 Ann. Cas. 986, 13 L. R. A. (N. S.) 1115, 92 Pac. 524; Manley v. Scott, 108 Minn. 142, 29 L. R. A. (N. S.) 652, 121 N. W. 628. The ground upon which these decisions are based is that a board is a continuous existing corporation; while the personal membership changes, the corporation continues unchanged. 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 — 10 — N. E. 493; Vacheron v. New York, 34 Misc. Rep. 420, 69 N. Y. Supp. 608; Franklin County v. Ranck, 6 Ohio C. D. 133, 9 Ohio C. C. 301, cited in note to 12 Ann. Cas. 990; 3 McQuillin on Municipal Corporations, sec. 1254, p. 2730; Egan v. City of St. Paul, 57 Minn. 1, 58 N. W. 267. 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 — 11 — N. Y. 437. ... To have charge and to exercise control over the building, the committee must be given full power, within reasonable limits, of course, to determine the number and kind of employees needed, in addition to the janitor and custodian, to select all employees, and to fix their compensation.” 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.