is responsible for want of ordinary care and skill, and this, too, whether his services are given gratuitously, or not. But in this case, if plaintiff knew defendant was going away, and the services of the defendant were given gratuitously, he could only be held responsible for such treatment as he administered personally, and cannot be held for any negligence or want of skill in Dr. Minor."

The surgeon of a railroad company whose duty it is to treat injured employees of the company, and who, on going out of town, stated to the company that if anything happened in his absence a certain other physician would look after it for him, is not responsible to an employee of the company for the negligence of such other physician, where there is nothing to show any agreement as to pay between the two physicians, and the substitute is paid by the company. Hitchcock v. Burgett (1878) 38 Mich. 501, supra.

In Stokes v. Long (Mont.) supra, the court said: "If one physician, upon leaving temporarily the community in which he is engaged in practice, recommends to his patients the employment, in case of need, of some other physician who is not in any sense in his employment, nor associated with him as a copartner, he is not liable for injuries resulting from negligence or want of skill in the latter, in case he is employed. In such case the employment of the latter is under an independent contract, and he is solely responsible for the result."

For hospital cases, see I. supra.

III. Contract cases.

-

In the reported case (MOORE v. LEE, ante, 185) the trial resulted in verdict and judgment for the defendant, which was reversed by the court of civil appeals (1913) Tex. Civ. App. -, 162 S. W. 437, and this decision is now reversed by the supreme court. At the trial the jury asked the court to instruct them whether or not the defendant was required to furnish, as his substitute, a physician possessing the same degree of skill and qualifications as he himself possessed. In response to this request, and at the in

stance of the appellee's counsel, the court instructed the jury as follows: "In furnishing a substitute, the defendant was only required to use ordinary care to furnish a physician possessing that degree of skill and ability as is usually possessed by physicians engaged in the general practice of medicine in the city of Dallas and vicinity." The court of civil appeals said, inter alia: "Whether Dr. Hardin may be termed a partner of appellee in the treatment of appellant's wife, or not, still, appellee being a physician himself, and having by contract undertaken the treatment of Mrs. Lee, and having secured the services of Dr. Hardin to relieve himself of the necessity of attending her himself, and to serve his own interests, appellee will not be heard to say that, in such case, the duty resting upon him in the selection of a substitute physician was simply that of ordinary care. It was clearly shown that at the time appellee declined to respond to appellant's call to attend his wife, and sent in his stead Dr. Hardin, Mrs. Lee was at a critical stage of her illness, and, under all the circumstances of this case, it was his duty, in sending a substitute to wait on appellant's wife, to select a physician possessing that degree of knowledge, skill, and care which physicians practising in similar localities ordinarily possess, and for a failure to perform this duty, if such failure resulted proximately in injury to appellant's wife, he would be primarily liable in damages."

It will be seen that the supreme court does not refer in terms to the question asked by the jury, whether the defendant was required to furnish as his substitute a physician of equal efficiency with himself, but discusses the case on the apparent theory that the duty of the contracting physician extended no further than the exercise of ordinary care in the selection of a substitute. The court, in this respect, follows the very similar case of Myers v. Holborn (1895) 58 N. J. L. 193, 30 L.R.A. 345, 55 Am. St. Rep. 606, 33 Atl. 389, which it sets out at some length in the opinion.

It thus appears that these two cases hold that a physician who has contracted to attend a woman through her confinement is required to do no more than to turn the case over to any reputable physician. It must be confessed that this does not seem satisfactory.

It may be noted, in this connection, that in Hunter v. Ogden (1871) 31 U. C. Q. B. 132, a husband in the trial court recovered a verdict of $500 from a physician, for breach of a contract to attend his wife during childbirth; but, on appeal, the court reduced the damages to 1 shilling, on the ground that most of the damages were for the personal injury and suffering of the wife, which could not be recovered for in that action.

In Robinson v. Crotwell (1911) 175 Ala. 194, 57 So. 23, 2 N. C. C. A. 386, where, after consulting with the plaintiff, the defendant procured his brother to perform an operation, for a compensation agreed upon and to be paid by the plaintiff, the court said: "Nor is there any suggestion in pleading or in proof that defendant negligently advised the employment of an unskilful or incompetent surgeon to perform the operation. Under these circumstances, the defendant was not responsible for any default on the part of the operating surgeon, who was practising his profession as an inde pendent agent. Myers v. Holborn (N. J.) supra.

For hospital cases see supra, I.
B. B. B.

V.

The resolution of January 1st, 1908, created an "office," as distinguished from a "position," so that the title to the same cannot be determined by an action through certiorari.

State ex rel. Lewis v. Board of Public Works, 51 N. J. L. 242, 17 Atl. 112. Quo warranto, and not certiorari, is the proper remedy.

Bumsted v. Blair, 73 N. J. L. 378, 64 Atl. 691; State, Robinson, Pros4 A.L.R.-13.

ecutor, v. Bayonne, 58 N. J. L. 325, 33 Atl. 734; State, Loper, Prosecutor, v. Millville, 53 N. J. L. 362, 21 Atl. 568; State, Bradshaw, Prosecutor, v. Camden, 39 N. J. L. 416.

The incumbent in such "office" is entitled to be heard in court upon proceedings to determine his title.

State, Haines, Prosecutor, v. Camden County, 47 N. J. L. 454, 1 Atl. 515; State, Bradshaw, Prosecutor, v. Camden, 39 N. J. L. 416; Clayton v. Hudson County, 60 N. J. L. 364, 37 Atl.

725; Schwarz v. Dover, 70 N. J. L. 502, 57 Atl. 394.

Messrs. Benny & Cruden, for defendant in error:

The defendant in error held a "position," and not an "office."

State ex rel. Bownes v. Meehan, 45 N. J. L. 189; State ex rel. Lewis v. Board of Public Works, 51 N. J. L. 240, 17 Atl. 112; State v. Broome, 61 N. J. L. 115, 38 Atl. 841; State ex rel. Stewart v. Hudson County, 61 N. J. L. 117, 38 Atl. 842.

The term of his position was not fixed by law.

State ex rel. Stewart v. Hudson County, supra.

The resolution abolishing the position of defendant in error is void.

State ex rel. Ingram v. Street & Water Comrs. 63 N. J. L. 542, 43 Atl. 445.

Certiorari is the appropriate rem

edy.

State, Daily, Prosecutor, v. Essex County, 58 N. J. L. 319, 33 Atl. 739; State, Peterson, Prosecutor, v. Salem County, 63 N. J. L. 57, 42 Atl. 844.

Gummere, Ch. J., delivered the opinion of the court:

Harker, the defendant in error, sued out a writ of certiorari to review the validity of a resolution of the board of councilmen of Bayonne, adopted January 22, 1912, the effect of which was to remove him, without a hearing, from the position of assistant water purveyor of that municipality. His claim is that, because he was an honorably discharged sailor of the Spanish War, his removal was in violation of the provision of the first section of the Act of March 27, 1907 (Comp. Stat. p. 4873), which enacts that no honorably discharged soldier, sailor, or marine, who has served in any war of the United States, holding an office or position under the government of the state, or of any city, town, or county therein, whose term of office is not fixed by law, and who receives a salary from the state, or such city, town, or county, shall be removed from his office or position except for cause and after a hearing, but shall hold the same during good behavior. The supreme court

considered that Harker's discharge from the service of the municipality was in violation of this statutory provision, and set aside the resolution.

The resolution complained of not only discharged Harker from the employ of the city, but abolished the position that he occupied. It was a part of a general scheme, the purpose of which was to reorganize the water department of the city; that department, in the judgment of the board of councilmen, having been conducted in a manner clearly detrimental to the interests of the taxpayers, there having been a daily waste of water amounting to more than 1,000,000 gallons, and bills for water supplied by the city to consumers amounting to more than $200,000 having been allowed to go uncollected. The department, at the time of the reorganization, was double-headed, the responsibility for its proper management being divided between the water purveyor and the water registrar, each of whom had an assistant. By the reorganization scheme these two offices, together with the positions of assistants to the holders thereof, were abolished, and the department was placed under a single head, who was made responsible for its proper conduct, and an assistant and chief clerk were provided for him.

There is no suggestion in the case (notwithstanding the contention of counsel to the contrary) that in reorganizing the government of the water department the board of councilmen was actuated by any ulterior motive, or had any other purpose than the providing of a more efficient system of operation in this important branch of the city government; and, this being so, its action did not run counter to the Statute of 1907, notwithstanding the fact that one of its incidents was the abolition of the position held by Mr. Harker. The purpose of the statute is to protect members of the class embraced within it against re

moval from the public service without cause, to prevent them from being affected by political changes in the state and municipal governments, but not to interfere with the carrying into effect of those changes in the administration of public affairs which past experience or new conditions demonstrate are necessary for the public welfare. State, Evans, Prosecutor, v. Hudson Countr. 53 N. J. L. 585, 22 Atl. 56; State, Beirne, Prosecutor, v. Street & Water Comrs. 60 N. J. L. 109, 36 Atl. 778; Sutherland v. Street & Water Comrs. 61 N. J. L. 436, 39 Atl. 710; State, Caulfield, Prosecutor, v. Jersey City, 63 N. J. L. 148, 43 Atl. 433; Stivers v. Jersey City, 70 N. J. L. 606, 57 Atl. 143, s. c. on error, 70 N. J. L. 827, 59 Atl. 1118. The abolition by a municipality of a position or an office held by one of the favored class designated in the statute, when such action is taken in good faith, and for the bet

V.

- vested right.

2. There is no vested interest or

right in an office.

[See 22 R. C. L. 376.]

Headnote 1 by ROSSER, C.

Messrs. E. E. Hood and W. M. Engart, for plaintiff in error:

We contend that the city has the inherent right, in the absence of an express law to the contrary, to abolish the office held by any police officer of the city, when the finances of the city warrant such action.

Leadville v. Bishop, 14 Colo. App. 517, 61 Pac. 58; 28 Cyc. 512; Heath v. Salt Lake City, 16 Utah, 374, 52 Pac. 602; 2 Abbott, Mun. Corp. 630; People ex rel. Evans v. Public Parks, 60 How. Pr. 130; Langdon v. New York, 92 N. Y. 427; Mechem, Pub. Off. 445, 454; Ex parte Hennen, 13 Pet. 256, 10 L. ed. 151; Phillips v. New York, 88 N. Y. 245; Venable v. Police Comrs. 40 Or. 458, 67 Pac. 204; Neumeyer v. Krakel, 110 Ky. 624, 62 S. W. 518; State ex rel. Goodnow v. Police Comrs. 184 Mo. 109, 71 S. W. 215, 88 S. W. 27; Moores v. State, 54 Neb. 486, 74 N. W. 823; Lincoln v. Yeomans, 34 Neb. 329, 51 N. W. 844; Re Lazenby, 76 App. Div. 171, 78 N. Y. Supp. 302; People ex rel. Sims v. Fire Comrs. 73 N. Y. 437; People ex rel. Griffin v. Lathrop, 142 N. Y. 113, 36 N. E. 805; People ex rel. Cline v. Robb, 126 N. Y. 180, 27 N. E. 267; Hudson v. Denver, 12 Colo. 157, 20 Pac. 329.

Rosser, C., filed the following opinion:

This was an action by John Hewett against the city of Shawnee to recover an amount which he claims the city owed him for salary for the month of January, 1908, as assistant chief of police for said city. The case was tried upon an agreed statement of facts, which is as follows:

"First. It is agreed that John Hewett was the regularly appointed, qualified, and acting assistant chief of police of the city of Shawnee on the 31st day of December, 1907, at a salary as provided by ordinance duly passed providing for assistant chief of police, of seventy-five ($75) dollars per month, which ordinance was in force and effect during the month of January, 1908.

"Second. That after the adoption of the Constitution, and prohibition went into effect in this state, the revenues of the city dropped off to a large extent, and, in order to economize, the mayor and council on the 3d day of December, 1907, adopted

the following resolution and motion: 'Motion by Clayton, seconded by Day, that the mayor appoint a committee of four to act in conjunction with himself to investigate the various departments of the city, and ascertain as best they can where retrenchments can be made, thus curtailing the expenses of the city as much as it is possible to do so. Motion carried. The mayor appointed the following members of the comWayne.' That on the 19th day of mittee: Clayton, Pierson, Love, and December said committee made a report to the mayor and council in compliance with said resolution, a copy of which report is hereto attached, marked Exhibit A,' and made a part of this agreed statement of facts:

"Report of Council Ways and Means Committee.

"To the Mayor and Council of the City of Shawnee, "Gentlemen:

"After a careful investigation into the financial and other conditions of the fire department, police department, and street department of the city, with a view to bring the cost of their maintenance within the limits of the revenues, your committee recommends as follows: 1st. That one man be cut off from the central fire station force, and that for the protection of property the two substations be maintained as at present. 2d. That the day force of police shall consist of the chief of police, two patrolmen and a desk sergeant. The night force to consist of two patrolmen, one of whom may be designated as assistant chief, the office of which we hereby recommend be abolished; and one to be the merchant's police, and a desk sergeant; we also recommend that the city cannot at present maintain a city detective. This reduction vill place the cost of the force, $490 per month, a saving of $315, monthly. We further recommend that the cost of feeding the city prisoners who are used on street work shall be borne by the poll tax and street revenues. 3d. We further