Stadler v. City of Detroit
| Decision Date | 13 May 1865 |
| Citation | 13 Mich. 346 |
| Court | Michigan Supreme Court |
| Parties | John B. Stadler v. The City of Detroit |
Heard April 8, 1865
Error to Wayne circuit.
The facts appear in the opinion.
Judgment reversed, and a new trial ordered.
L Bishop, for plaintiff in error.
William Gray, for defendant in error.
Cooley J.:
This action is brought to recover the salary of the plaintiff as city marshal of the city of Detroit, for the year 1863. It appears he was appointed to that office by a resolution of the common council, passed January 14, 1862, and which, by its terms, purported to confer the appointment for one year. He gave bonds for the performance of his official duties, reciting therein the appointment according to its terms, and thenceforward acted as marshal until January 13th, 1863, when the common council by a vote of 16 to 4, appointed Daniel Mahaney to that office, but without removing the plaintiff, unless such appointment of Mahaney had the effect of a removal. The plaintiff, at the expiration of the second year, presented to the council his claim for the year's salary, which was refused allowance.
It is suggested, on behalf of the city, that, under the amended charter, it is questionable whether the appointment of the marshal is not for one year instead of two. We are unable to discover any room for doubt on this question. Section 13 of chapter 2, as amended (Laws of 1861, p. 181-2), expressly provides that the marshal shall hold his office for the term of two years; and section 2 of the same chapter, which is supposed to create the doubt by providing that certain city officers, named, including the marshal, "shall be appointed by the common council, at a meeting to be held on the second Tuesday of January, in each year" (Laws of 1861, p. 181), is a general provision for the election of various officers, whose terms of office are not of uniform duration, and it can only mean that appointments shall be made at each annual meeting to fill such of the several offices as are then to become vacant.
The term of the office being for two years, the council had no power to limit it to one, by their resolution of appointment; and we have no doubt the appointment of the plaintiff was a valid one for the full statutory period. The fact that the term was stated in his official bond at one year, can make no difference; such a recital was surplusage, and the bond, so far as appears from the record, was valid for the whole time.
It is urged, however, by counsel for the city, that the common council has the authority, under the charter, to remove the marshal at will, and without charges; and that the appointment of Mahaney to the office operated as such removal. The construction which the city authorities place upon the provisions of the charter as to the power of removal, we regard as the correct one. Section 20 of chapter 2, as amended (Laws 1861, p. 182), provided that:
"Any officer holding office by appointment, unless otherwise provided by law or ordinance, may be removed at any time by the common council without charges and a trial thereof, by a vote of a majority of the aldermen elect, except the controller, receiver of taxes and superintendent of the house of correction, who may be removed for the same causes and on the same proceedings as a member of the common council."
The intention of this section was to vest in the common council an uncontrolled power to remove its appointees--except those specified--unless statute or ordinance provision should be made restricting their power in specified cases. Section 19 of chapter 2, which authorizes the mayor to suspend or remove the marshal for reasons to be reported to the council, does not undertake to restrict the power of removal vested in the council by section 20 as amended, and is not inconsistent with it. It cannot, therefore, have the effect to exempt the marshal from the operation of said section 20.
The only remaining question is whether the common council have exercised the power of removal with which they are vested.
It has been held that where an officer is appointed during the pleasure of the appointing power, an appointment of another...
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