Donaghy v. Macy

45 N.E. 87, 167 Mass. 178, 1896 Mass. LEXIS 54

Opinion

Holmes, J.

On January 1, 1894, under the ordinances then in force, the petitioner was duly elected to his office for the term of four years, ending in January, 1898. Ordinances of 1882, c. 11, § 4. In 1896 this ordinance was repealed, and a new ordinance was adopted, which, so far as it affects'the present case, is like the old one, except that the time of election is April instead of January, and the first election under it is for two years, ending in 1898. After that the elections are for four years. The petitioner suggests a doubt whether the powers of the city council were not exhausted by one exercise, so that the second ordinance is void, and argues that, however that may be, inasmuch as by § 5 of the earlier ordinances he was removable for cause, he could not be removed otherwise, but had a contract with the city which no more could be avoided b-y a repeal of the ordinance than by a more direct attempt to remove him without cause.

We have no doubt that the city council had power to pass the second ordinance. St. 1852, c. 177. It is not necessary to resort to the words “ from time to time,” in § 1, to convince us that the powers given by that section were not exhausted by a single exercise. This being so, we think that the respondent Dahill lawfully fills the office created by the later ordinance, and, even if it were true that the petitioner has a contract which binds the city, we should hesitate long before requiring the city to keep the earlier created office open for the purpose of specifically performing it. We should be much more likely to leave the petitioner to his remedy by action.

But we know of no decision in this Commonwealth that the petitioner has a contract which binds, or purports to bind, the city to keep him in his office after the office shall have been abolished lawfully, except for the contract. It is going a long way to say that there was any contract, however qualified, to continue the petitioner in office during his term, or to accept the corollary that the petitioner had not a right to resign whenever he saw fit. But the notion that an appointment for a term under an ordinance providing that the officer shall be removable for cause-, without more, is a contract that the office shall be kept up for the term irrespective of the public welfare, seems to us to go beyond any possible view, and to be contrary to such decisions as we have seen which bear upon the point. Butcher v. Camden, 2 Stew. (N. J.) 478, 480, 481. Love v. Jersey City, 11 Vroom, 456. Hoboken v. Gear, 3 Dutch. 265. Augusta v. Sweeney, 44 Ga. 463. Waldraven v. Memphis, 4 Coldw. 431. Marden v. Portsmouth, 59 N. H. 18. Brazil v. McBride, 69 Ind. 244, 256. Conner v. New York, 2 Sandf. 355; S. C. 1 Seld. 285. Dillon, Mun. Corp. (4th ed.) § 231; see § 232, note 1.

It is not to be presumed that the repeal of the ordinance was a mere device to get rid of the petitioner, and the petition does not allege such a case. Petition denied.