City Council v. Sweeney , 44 Ga. 463 ( 1871 )

McCay, Judge.

It is only in a very loose sense that the relation between the holder of an office and the public can be said to be one of contract. ' One of the very first ingredients of a contract is wanting, to-wit: that of mutuality. The officer may, at any time, resign, move away, or die, and the public has no remedy. So, too, the public may, at any time, discharge the incumbent, provided that discharge is within the power under the law of the public agent who makes the discharge. The public al ways acts through agents, and those agents only have such powers as the public has conferred upon them. If the public has, by law, made the officer removable at the will of some other public agent, the removal may be made. If, by law, the removal is only by some other mode then that mode must be resorted to. It is not a matter of right in the officer, but a question of power in the agent who undertakes the removal.

It was upon this that the case in Shaw vs. Mayor and Council of Macon, 21 Georgia Reports, 280, went. The City Council did not, by law, have the right to remove, hence, there was no removal, and the marshal was entitled to his salary. It will, we think, be found that this is the ground upon which the cases have been put, where decisions have been made, seemingly in favor of the right of the officer to his pay after removal, and not upon the ground of contract: 4 Dev. N. C. R., 18, 19 ; 10 Howard, 414.

It has always been held in Georgia, that the people in convention might abolish even a constitutional office. If the office be created by legislative enactment, the Legislature may abolish it; and if it be created by municipal authority, that same authority may abolish it. This is the clear deduction from the case of Butler vs. the State of Pennsylvania, 10 Howard, 414. See, also, 6 Sergeant’s Reports, 322; 5 Watts and Sergeant, 418. We think, therefore, that, as there was evidence that this office had been abolished by the proper authority, the plaintiff in the suit had no right, by contract, to be interfered with, and the Court erred in qualifying, as he did, his charge, that the City Council had the right to abolish the office of hospital physician.

The right of an incumbent of an office does not depend on any contract, in the sense of a contract, in the sense of a bargain between him and the public. His right depends on the law, under which he holds. If that law be one capable of being repealed by the power which acts, the right of the officer is gone. That clause of the bill of rights, in our own Constitution, which prohibits the passage of a law affecting private rights, or rather the varying of a general law, by special legislation, so as to affect private rights, cannot affect this question, since this law, ordinance of Council, which was repealed, was not, itself, a general law, but a law creating a particular office, which the power creating it had the same power to abolish as it had to create.

Judgment reversed.