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city, and the office of street commissioner is hereby declared vacant."
Upon a motion being made to adopt this resolution, the mayor stated that he did not think it could be acted upon at this meeting, under the call that had been made, and the matter being referred to the city attorney, he decided that the mayor was right. No action was therefore taken on the resolution at that meeting. At the next regular meeting, held August 5, 1889, the resolutions above quoted were adopted by yeas, seven; naye, two. Immediately following this action, a resolution was adopted appointing Magnus Hallgren, the plaintiff, street commissioner by a similar vote. No notice was given to the defendant of these charges against him, or of the proposed action to remove him from office.
The following provisions of the charter (Local Acts of 1883, pp. 161, 162, 176) bear upon the question of the right of the common council to remove the defendant from office:
“The following officers shall be appointed by the council, viz., a city attorney, city surveyor, city marshal, city clerk, street commissioner, and engineer of the fire department. The council may also, from time to time, provide by ordinance for the appointment of, and appoint for such term as may be provided in the ordinance, such other officers, whose election or appointment is not herein specially provided for, as the couneil may [shall] deem necessary for the execution of the powers granted by this act, and may remove the same at pleasure": bec. 3, c. 5.
“The mayor, city marshal, city clerk, city treasurer, street commissioner, supervisors, and constables shall hold their office for the term of one year from the first Monday in April of the year when elected, and until their successors are qualified and enter upon the duties of their offices": Sec. 5, c. 5.
"Any person appointed to office by the council by authority of this act may be removed therefrom by a vote of the majority of the aldermen-elect, and the council may expel any alderman, or remove from office any person elected thereto, by a concurring vote of two thirds of all the aldermen-elect. In case of elective officers, provision shall be made by ordinance for preferring charges, and trying the same, and no removal of an elective officer shall be made unless a charge in writing is preferred, and an opportunity given to make a defense thereto”: Sec. 17, c. 8.
It is claimed by the plaintiff that under this last provision
of the charter the common council had a right to remove the defendant from the office of street commissioner without notice to him. In Mead v. Treasurer, 36 Mich. 416, this court said: “Our state system favors appointments for fixed periods, and almost entirely rejects the policy of removals at will."
We shall need to find in the charter of Menominee clear and unequivocal power vested in the council to remove this officer without notice, before we can concede that any such power exists.
In 1 Dillon on Municipal Corporations, section 250 (188), it is said: “Where an officer is appointed during pleasure, or where the power of removal is discretionary, the power to remove may be exercised without notice or hearing."
In Mechem on Public Officers, section 454, it is said: "In those cases in which the office is held at the pleasure of the appointing power, and where the power of removal is exercis. able at its mere discretion, it is well settled that the officer may be removed without notice or hearing."
In support of this position, both of these learned writers cite the case of Ex parte Hennen, 13 Pet. 230, and upon this case most of the later cases have been based. That was the case of a clerk of the district court of the United States for the eastern district of Louisiana. He had been removed from office by the district judge without other cause than the desire of the judge to supplant him with a personal friend. The court held that as the law vested in the judge the appointment of a clerk, and as such appointment was not for any fixed term, the power of appointment necessarily carried with it the power of removal. The main ground of the decision was, that it could not be admitted that it was the intention of the constitution that such an office should be held during life. We have not found any case where an officer who was appointed for a fixed term (and when the power of removal was not expressly declared by law to be discretionary) has been held to be removable except for cause, and wherever cause must be assigned for the removal of the officer, he is entitled to notice, and a chance to defend: Field v. Commonwealth, 32 Pa. St. 478; State v. City of St. Louis, 90 Mo. 19.
It is claimed on behalf of the plaintiff that because section 17 of chapter 8 of the charter provides expressly that electivo officers shall not be removed except for cause, it is to be presumed that the legislature intends that appointed officers might be removed without cause. We are not disposed to al
AX. ST. REP., VOL XXI.-88
low any presumption to aid the exercise of such arbitrary power. In such a case, the legislature may, by express words, confer upon
the common council of a city the power to remove an officer without cause; but in the absence of such power, given in express words, the presumption must be that the legislature intended that every officer appointed for a fixed period should be entitled to hold his office until the expiration of such period, unless removed therefrom for cause after a fair trial. This presumption is strengthened when we compare section 17 of chapter 8 with section 3 of chapter 5, bo fore quoted. In the latter section, certain officers are declared to be removable at pleasure, and although the street commissioner is expressly named in that section, he is not included among those who may be so summarily removed.
But it is claimed by plaintiff that he has, since his appointment, been acting as street commissioner, and is therefore de facto such officer. There could not be two incumbents of this office. The defendant, by his refusal to deliver up the property, books, and papers of the office, has indicated that he claimed to hold the office. If he was once lawfully in office, a fact which we are not allowed to question on this record, and has never yielded, but has held on and continued to act, then the plaintiff has never gotten possession, and cannot be regarded as an officer de facto: Mead v. Treasurer, 36 Mich. 419.
The judgment of the court below was in accordance with these views, and is affirmed, with costs.
OFFICE AND OFFICER — REMOVAL OF OFFICERS. — As to the power of the logislature to remove officers from office, or to delegato sack power to the governor, see People v. Stuarh, 74 Mich. 411; 16 Am. St. Rop. 644, and particularly note 647, 648. The governor cannot himself enlarge bis own power respecting the removal from office of public officers, nor oan the legislatun itself deprive a duly appointed or elected officer of his right to hold office, except by due process of law: Melevier v. Therrien, 80 Mich. 187. Compare Board of Aldermen v. Darroro, 13 Col. 460; 16 Am. Ste Rep. 218
BUSCH V. WILOOX
(82 MICHIGAN, 936.) PRINCIPAL AND AGENT - ADOPTION OF CONTRACT — LIABILITY OF PRINCI
PAL - One dealing with an authorized agent is bound to inquire and ascertain the extent of his authority. A principal is bound by all acts
of the agent within the scope of his authority. L A PRINCIPAL ADOPTS THE CONTRACT OF A SELF-CONSTITUTED AGENT
who has assumed to act for him without authority, he is bound to inquire: and ascertain the extent the self-constituted agent assumed to act in his behalf. He is bound by all acts within the scope of the assumed authority of such agent. His liability extends to the frauds and misrepresentations of the agent committed or made while acting within the scope of the real or assumed authority.
George. A. Wilcox, in pro. per. and John D. Conely, for the motion for a rehearing.
CAAMPLIN, C. J. An opinion was handed down in this case October 10, 1890, and the defendant has moved for a rehearing, based upon errors of fact and law. The defendant in person has furnished reasons for a rebearing, in wbich he states there are several misapprehensions and misstatementa of facts as proved upon the trial.
And first he calls attention to the purchase price paid by him for the legal title to the lands purchased by him from Remick. He states that the record shows that he paid Remick four thousand dollars, and allowed McKay one third of the net profits to be made on the purchase for his interest, and also paid him one thousand dollars cash bonus in addition. In this the defendant is correct; but as the amount paid by defendant for the land was not involved in the issue, it was not stated in the opinion.
2. He shows that the court was in error in stating that “Remick had an estimate of the pine timber on the lands made by Robinson and Flynn, which showed that the land contained about four million feet of pine." **
The record shows, both from the testimony of Mr. Hall and of Mr. Wilcox, that the Robinson and Flynn estimate was made after the purchase by Mr. Wilcox. Mr. Wilcox testifies that when he purchased he interviewed both McKay and Remick, and each assured him that the land was good for five million, and a few months after he bought he employed Robinson and Flynn to estimate the pine, and they did so. He testifies: “I told them I had purchased that land, and would like to know what there was as near as I could.”
This estimate was the one which Hall had with him when he had his interviews with Busch, and showed that their estimate was three million seven hundred and seventy thousand feet. This estimate he got from Wilcox. Hall also bad Van Riper make an estimate, and that showed the quantity of pine to be five million one hundred and sixty-two thousand feet. It is freely admitted that the court was la boring under a misappre hension when it stated in the opinion that "Remick had an estimate of the pine timber on the lands made by Robinson and Flynn, which showed that the land contained about four
million feet of pine." :: Mr. Wilcox contends that “the effect of these misappre
hensions of the facts is prejudicial to the good faith of the initial purchase having been made on the basis of five million feet, and the subsequent holding and dealing with the lands on this basis, supported by Van Riper's estimate, subsequently made. It is submitted [says Mr. Wilcox) that even if these misstatements of fact do not materially affect the final judgment of this court, it is due to the defendant that they should appear correctly in the opinion and published report."
We think the defendant is entitled to have it appear that when he purchased he was told by McKay and Remick that the land was good for five million feet of pine, and that he relied upon such statement; and that after he purchased be bad a desire to know what there was on the land, and procured Robinson and Flynn to estimate the pine, and that they did so, and that their estimate showed bim that there was three million seven hundred and seventy thousand feet of pine upon the land. We think these facts can only have a bearing upon the issue, when considered in connection with what was said and done, and the use made of this estimate by Hall in his interviews with Busch.
The third reason assigned for a rehearing by the defendant is mainly an argument upon the facts, and if addressed to the jury, or if we could decide upon the facts, would not be without great weight. But we cannot reverse a case upon disputed facts, however much we might feel that they impressed us differently from what they did the jury. Now, we might infer and find from the testimony that Busch relied exclusively upon the guaranty of Mr. Hall as to the quantity of pine and of Van Riper's estimate. The testimony is very strong in that direction. But Busch also testifies that he relied upon the representations made by Mr. Hall, and we cannot say that he