Locke v. City of Central

• Citation: 4 Colo. 65
• Parties: LOCKE v. THE CITY OF CENTRAL.
• Decision Date: 01 April 1878
• Court: Supreme Court of Colorado

4 Colo. 65

LOCKE v. THE CITY OF CENTRAL.

Supreme Court of Colorado

April, 1878

Error to District Court of Gilpin County.

JUDGMENT of nonsuit was entered against the plaintiff in the court below.

Mr. L C. ROCKWELL, for plaintiff in error.

Mr. H M. ORAHOOD, for defendant in error.

THATCHER C. J.

In April, 1874, Bradford H. Locke was duly elected by the council of the city of Central, as city surveyor for the then ensuing municipal year. His general duties were prescribed by ordinance; which also provided that he should 'perform such other duties as might be enjoined upon him by ordinance or resolution of the city council.' The same ordinance prescribed the compensation he should receive for surveying subdividing or giving the grade of any lot or piece of ground within the city, and furnishing a certificate thereof-which compensation was to be paid by the parties at whose request such work was done. The ordinance is silent as to fees to be paid the city surveyor for all other services. It was admitted at the trial that he had received full compensation for such work as the ordinance prescribed fees. The suit was instituted to recover for the performance of various duties, imposed upon him by ordinance or resolution, for which no fees were fixed. He plaintiff proceeded upon the notion that upon an implied assumpsit he was entitled to recover from the municipal corporation whatever his services were reasonably worth for the discharge of all duties for which the ordinance allowed no compensation.

It is competent for the city council to increase or diminish the fees pertaining to the office of city surveyor, or absolish them altogether. Its incumbent, if the fees be diminished or entirely taken away, may at once resign. As the relation between himself and the city does not rest upon contract, he is not legally bound to continue his services until the expiration of his term. But having accepted the office, as long as he performs its duties, the measure of his compensation must be determined by the city authorities.

Where the relation of employer and employee exists both parties are bound by the terms of the contract. If either party violates his agreement with the other, he may sue for breach of contract. If the employer discharge the employee before the expiration of his term of service, he can be made to respond in damages. But between a municipal corporation and its officers, a very...