Kendall v. City of Canton

Chalmers, J., delivered the opinion of the court. The declaration alleges that the plaintiff was, by the mayor and aldermen of the city of Canton, on the first day of January, 1873, elected to the office of cotton-weigher of all cotton bought and sold within the corporate limits of said town, for one year from the date of said election ; that he agreed to pay for said privilege the sum of $1,000, of which amount he actually paid $400; but that afterwards, before the expiration of his term, to wit, on the-day of 1873, the said mayor and aldermen wantonly and wrongfully removed him from his said office without cause; wherefore he brings suit, and lays his damages at $5,000. The defendant pleaded that at the date of the plaintiff’s election there was in force an ordinance of the city providing for the election of a cotton-weigher to weigh all cotton sold in said city, and imposing a penalty on all others weighing cotton to be sold therein, and that the plaintiff was duly elected and qualified thereunder; that afterwards, to wit, on 8th of April, [530] 1873, the legislature of the State passed an act, entitled “ An Act to authorize the Board of Supervisors of Madison County to appoint cotton-weighers therein, and for other purposes,” (acts of 1873, p. 332), whereby the power of appointing cottonweighers throughout the county was taken from the city authorities and vested in the board of supervisors, and all ordinances of the city on the subject were by the terms of the act expressly repealed, and that thereupon the mayor and aldermen of the city repealed their ordinance on the subject. To this plea the plaintiff demurred, upon the ground that the act of the legislature recited was unconstitutional, and, if valid, was no excuse for the repeal of the defendant’s ordinance. This demurrer was by the court below overruled, and the plaintiff declining to plead further, judgment final was entered for the defendant, from which the plaintiff appeals. By § 2267 of Code 1871, the municipal authorities of incorporated towns were empowered to appoint cotton-weighers, who should possess the exclusive right to weigh cotton therein, at a compensation to be prescribed by the local government, and who should be removable at their discretion. It may well be doubted whether under this statute it was competent for the mayor and aldermen to appoint a person to office, by contract or otherwise, for any term which would prevent themselves or their successors from exercising their discretionary power of removal. However this may be, it is clear that they could not by any contract deprive the legislature of its right to change, alter or abolish the office at pleasure. When that body, therefore, by the act of 8th April, 1873, virtually abolished the office to which the plaintiff had been appointed, and repealed all ordinances of the city of Canton in conflict with this enactment, it was the exercise of a vis major, which the plaintiff and the authorities of the city were alike powerless to resist. Counsel for the plaintiff are correct in saying that while an election or appointment to office is .not a contract in its broadest sense, it does so far partake of the attributes of a contract as to entitle the incumbent to recover all salary accruing during [531] his incumbency; but there is no demand here for salary earned and in arrear. The action sounds wholly in damages, and proceeds upon the idea of a vested right to hold for the full term for which the plaintiff had been elected. Nothing is better settled than the legislative power to terminate at pleasure the incumbency of a statutory office, either by an abolition of the office itself or by a change in the tenure or the mode of appointment. If the plaintiff paid out his money to secure an election to such an office, he did so subject to the risk of the legislative exercise of this power, and he cannot demand damages at the hands of those from whom he received the position, because a superior authority has put an end to his term. Another view seems equally fatal to the plaintiff’s case. There is no allegation that there were any emoluments of office to be received from the city, nor was any demand for such contained in the declaration. The inference is that the compensation was to be derived from the owners of the cotton weighed. If, as contended by the plaintiff, the act of the legislature was unconstitutional, he remained the lawful cotton-weigher of the. city, as much after its passage as before, and the act of the mayor and aldermen, in repealing the ordinance under which he had been elected, was inoperative as to him, and did him no harm. He should, therefore, have continued in the discharge of his duties, and invoked the protection of the law against all persons who interfered with his monopoly by assuming to weigh cotton within the corporate limits. Judgment affirmed. Campbell, J., having been of counsel, took no part in this decision.