ex

.

V.

Kentucky.-Williams, v. Newport the common councils of cities general (1876) 12 Bush, 438; Frankfort v. power to enact ordinances for the proBrawner (1896) 100 Ky. 166, 37 S. W. tection and security of property, the 950, 38 S. W. 497.

preservation of good order, and for Massachusetts.-Chandler v. Law- the safety and welfare of their inhabrence (1880) 128 Mass. 213.

itants, plainly includes the police and Missouri. Primm v. Carondelet police power of such cities, and en(1856) 23 Mo. 22; Magner v. St. Louis ables such councils to abolish any po(1903) 179 Mo. 495, 78 S. W.782 (hold- sition or office they deem unnecessary ing, however, that the plaintiff was connected with or incident to the poonly an employee).

lice government of the city unless othNew Jersey.-Butcher v. Camden erwise forbidden. People rel. (1878) 29 N. J. Eq. 478; McCann v. Dunn v. Ham (1901) 166 N. Y. 477, 60 New Brunswick (1905) 73 N. J. L. 161, N. E. 191. 62 Atl. 191; McBride v. Bayonne An office created by ordinance may (1907) 74 N. J. L. 398, 65 Atl. 895. be abolished by ordinance.

New York.--Wittmer y. New York Alabama.Oldham v. Birmingham (1900) 50 App. Div. 482, 64 N. Y. Supp. (1893) 102 Ala. 357, 14 So. 793. 170.

Connecticut.-State ex rel. Rylands Ohio. State ex rel. Atty. Gen. v. v. Pinkerman (1893) 63 Conn. 176, 22 Jennings (1898) 57 Ohio St. 415, 63 L.R.A. 653, 28 Atl. 110. Am. St. Rep. 723, 49 N. E. 404 (obiter); Georgia. - Augusta v. Sweeney Toledo v. Lake Shore & M. S. R. Co. (1871) 44 Ga. 463, 9 Am. Rep. 172. (1889) 2 Ohio C. D. 450; State ex rel. Missouri. - Primm Carondelet Herrick v. Searay (1909) 31 Ohio C. (1856) 23 Mo. 22; Magner v. St. Louis C. 83 (conceded).

(1903) 179 Mo. 495, 78 S. W. 782 Oklahoma. - Shawnee v. Cotteral (where, however, the court held that (1913) 37 Okla. 79, 130 Pac. 548; the plaintiff was only an employee). SHAWNEE V. HEWETT (reported here- New Jersey.-McBride v. Bayonne with), ante, 195.

(1907) 74 N. J. L. 398, 65 Atl. 895. Tennessee. Waldraven V. Mem- Ohio.-State ex rel. Atty. Gen. v. phis (1867) 4 Coldw. 431.

Jennings (1898) 57 Ohio St. 415, 63 Texas.--Palestine v. West (1896) Am. St. Rep. 723, 49 N. E. 404 (obTex. Civ. App. —, 37 S. W. 783. iter); Toledo v. Lake Shore & M. S.

Utah.-McAllister v. Swan (1897) R. Co. (1889) 2 Ohio C. D. 450. 16 Utah, 1, 50 Pac. 812; Heath v. Salt South Carolina.–Stone V. Mahon Lake City (1898) 16 Utah, 374, 52 Pac. (1911) 88 S. C. 576, 71 S. E. 300. 602.

Tennessee.-Waldraven v. Memphis Thus a city having been empowered (1867) 4 Coldw. 431. to organize a fire department, and hav- Texas.-Palestine v. West (1896) ing done so and selected a chief of it Tex. Civ. App. —, 37 S. W. 783. and fixed his term at two years, might An act of the legislature established abolish the department and the chief's a board of commissioners of police for office during his term. Williams v. a certain city, and authorized them to Newport (1876) 12 Bush (Ky.) 438. appoint such police officers as might

Where the statute required five- be prescribed by city ordinance; it sevenths of the votes of all members was held that the city by ordinance of the city council to pass any act in- might abolish the office of sergeant of volving the expenditure of money, a police after the board had appointed majority vote on a matter involving a person to that position. Oldham v.. the expenditure of money and abolish- Birmingham (1893) 102 Ala. 357, 14 ing an office created by the council

So. 793. will be valid so far as the abolition of

But a city authorized to create ofthe office is concerned.

Wittner v.

fices by ordinance could not by resNew York (1900) 50 App. Div. 482, 64 olution abolish an office it had created N. Y. Supp. 170.

by ordinance. San Antonio v. MickleThe legislature by conferring upon john (1895) 89 Tex. 79, 33 S. W. 735.

When an ordinance of a city coun- elected for a term of two years, after cil creates an office and provides that the municipal authorities had passed The officer may be removed at the an ordinance creating the office of city pleasure of the council, a repeal of the tax receiver, and the officer to fill such ordinance removes the officer. Chand- place had been duly elected for the ler v. Lawrence (1880) 128 Mass. 213. term fixed by the charter and qualified,

A city having power by ordinance it was not within the power of such to establish a court may abolish it and municipal authorities, at their option, the office of its judge by repealing the during such term, to abolish the office. ordinance. Stone v. Mahon (1911) 88 Wilson v. Dalton (1910) 135 Ga. 240, S. C. 576, 71 S. E. 300, referring as 69 S. E. 163. not in conflict to Hardy v. Reamer The mayor may not discontinue an (1909) 84 S. C. 487, 66 S. E. 678, where office when the power to do so is the legislature gave cities of a certain lodged by the charter with the council. class power and authority to establish Foster v. Hindley (1913) 72 Wash. a board of police commissioners, and 657, 131 Pac. 197. a city established such a board by or- And where the power to appoint and dinance, and it was held that the of- remove police officers is vested in the fices so established could not be abol- mayor and aldermen, the aldermen ished by ordinance of the city. The alone without the mayor may not in court considered that the offices were his presence discharge the police state offices and said: “The power force. Murphy v. Webster (1881) 131 given the mayor and aldermen is that Mass. 482, where the court said: "Unof electing or appointing members of less otherwise provided by Constituthe board provided for by the act. In tion or statute, the power of removal is exercising this power they act as ex- incident to the power of appointment. ecutives, as the appointing to office is Cujus est instituere, ejus est abroan executive and not a legislative gare." function. Having exercised this pow- The following cases on the reducer by electing or appointing plaintiffs tion in or stoppage of pay by a city are to the offices provided for by the act, of interest in this connection: and being neither authorized to re- In Neumeyer v. Krakel (1901) 110 move such officers nor to abolish such Ky. 624, 62 S. W. 518, it was held that offices, created by a superior Sov- the power of the common council of a ereignty, their power is exhausted, and city to reduce the number of police they cannot remove plaintiffs, either officers was not taken away by a vodirectly or by abolishing their offices, luminous statute giving a board of so long as their terms are unexpired." safety large powers in regard to the

A city cannot without leave abolish public, the court considering that the an office created by the legislature. general legislative power of the city Marquis v. Santa Ana (1894) 103 Cal. vested in the common council could 661, 37 Pac. 650.

not be impaired except in explicit In Fenet v. McCuiston (1912) 105 terms. Tex. 299, 147 S. W. 867, it was held Similarly, it has been held that a that a proviso of power to a city coun- city may reduce or stop the pay of an cil to abolish certain charter offices office created by it. Barker v. Pitts"above named” was limited to those burgh (1846) 4 Pa. 49. named in the same section of the stat- A city ordinance created the office ute, and did not include officers named of police court bailiff to be appointed in preceding sections.

by the mayor with the consent of the Where an act of the legislature council biennially. The statute proamending a municipal charter provid- vided for the fixing of salaries of city ed that the city “shall be and is au- officers in the annual appropriation thorized to create the office of city tax bill or ordinance. After the salaries receiver,” prescribed his duties and had been fixed and appropriated for the mode of his election by popular the year the plaintiff was appointed vote, and declared that he should be police court bailiff. The next year the

city made no appropriation for the provide by ordinance that there should office and he was removed. It was held be no compensation. he could not recover any salary for the second year.

VIII. Abolition by other bodies. Turner v. Chicago (1898) 76 Ill. App. 649.

For cases of authorization by the Where the statute provided that the

legislature to inferior bodies to abolcommon council of a city shall fix the

ish offices, see VI. c (2) supra. compensation of officers, but that such

A county board may abolish a pocompensation shall not be diminished

sition it has created. State, Evans, during the term, after an officer had

Prosecutor, v. Hudson County (1891) qualified for an office the salary of

53 N. J. L. 585, 22 Atl. 56. which in the preceding year was

A county empowered by the legisla$1,200, the council, upon his assump

ture to create an office may, if unretion of the duties, fixed the salary at

stricted, abolish it. State, Greene, $5; it was not averred that the duties

Prosecutor, v. Hudson County (1882) were the same as heretofore, nor how

44 N. J. L. 388 (dictum); Hatfield v. much time they took, nor that the ac

County Ct. (1917) 80 W. Va. 165, 92 tion of the council was factious. It

S. E. 245. was held that improper motives of the

It was held in Proulx V. Graves council could not be inferred. Wesch

(1904) 143 Cal. 243, 76 Pac. 1025 v. Detroit (1895) 107 Mich. 149, 64

(where the holding incumbents were N. W. 1051.

not to be affected) that a constitutionWhere a city is authorized by char

al court of justice of the peace may be ter to fix the pay of an officer, the

eliminated by a consolidation of towndiscretion will not be reviewed by the

ships made by a county authorized by courts further than to consider wheth

general statute. er the pay is fixed at so small a sum as

But where a Constitution provided practically to abolish the office in that that there should be a justice of the no competent person can be found to

peace in each precinct, with a properform it, the court apparently con

viso that in precincts of over 5,000 sidering that it could only consider the

the number might be increased as may ordinance fixing the pay and facts of

be provided by law, and the statute which it could take judicial notice.

authorized county boards where a preDe Merritt v. Weldon (1908) 154 Cal.

cinct had over 20,000 to appoint an 545, 98 Pac. 537, 16 Ann. Cas. 955.

additional justice for each 20,000, it In State ex rel. Thurmond v. Shreve

was held that the county board, after port (1909) 124 La. 178, 134 Am. St.

having appointed an additional jusRep. 496, 50 So. 3, it was held that a

tice, could not reduce the number. city could not reduce the salary of the

Pueblo County V. Smith (1896) 22 charter and necessary office of auditor

Colo. 534, 33 L.R.A. 465, 45 Pac. 357. to an amount so low that no competent

And where the governor is to apperson would accept the office. The point a health officer in each county court distinguished State ex rel. Gen

and the county is to fix the salary, the try v. Dodson (1909) 123 La. 903, 49

county, after such salary has been So. 635, holding that a village having

fixed, may not reduce it to a nominal

sum. statutory power to fix the compensa

De Soto County v. Westbrook tion of an office may fix it at a trifling

(1886) 64 Miss. 312, 1 So. 352. amount, as having been decided under A town which created by resolution circumstances of general imperative an office not provided for by the chareconomy.

ter may abolish it by resolution. RalIn State ex rel. Kercheval v. Nash- ey v. Warrenton (1904) 120 Ga. 365, ville (1885) 15 Lea (Tenn.) 697, 54 47 S. E. 972. Am. Rep. 427, it was held that under Where a state board is authorized a statute providing that in cities of a to appoint such a number of certain certain class the compensation of the underofficers as it deems necessary, mayor shall be $2,400, and may be who shall hold for a term of four changed by ordinance, a city may not years, the board may abolish the office and thereby discharge an incumbent. having created a position, had power Ford v. State Harbor Comrs. (1889) to abolish it, if it became unnecessary. 81 Cal. 19, 22 Pac. 278.

In Farley v. Gilbert (1903) 24 Ky. It may be noted that it has been held L. Rep. 2109, 72 S. W. 1098, it was that, upon the abolition of a state held that the statute did not give a board without a saving clause as to county superintendent of schools such its appointments, the authority of arbitrary power as to enable him to those persons who merely held office abolish two adjacent school districts during its pleasure ceases. State ex in his county, and immediately rerel. Carter v. Public Lands & Buildings establish them by different numbers, (1878) 7 Neb. 42.

comprising substantially the same terWhere principals, teachers, etc., of ritory, and thereby remove from office the educational staff were to continue the trustees holding in the former disto hold their respective positions sub- trict. ject to removal for cause and subject In People ex rel. Archbold v. Health to the right of a city board of educa- Dept. (1886) 24 N. Y. Week. Dig. 197, tion to abolish unnecessary positions, it was held that the health department it was held that the board had power of the city of New York must dismiss to reorganize the four evening high persons when that is necessary on acschools in one of the city boroughs in- count of the size of the appropriato two evening high schools for males tions. and two for females, and to appoint The civil service commission of Chifemale principals to the female cago is not an independent body, but schools, and thus to oust two of the a department or bureau of the city, four males who had been principals and has no power to abolish an office of the four evening high schools. created by the common council. PeoCusack v. Board of Education (1903) ple ex rel. Jacobs v. Chicago (1916) 174 N. Y. 136, 66 N. E. 677; O'Leary v. 202 Ill. App. 105. Board of Education (1903) 174 N. Y. Sometimes the Constitution contains 511, 66 N. E. 1113.

direct authority to abolish an office. In People ex rel. Connolly v. Board State ex rel. Rhodes v. Hampton of Education (1906) 114 App. Div. 1, (1888) 101 N. C. 629, 8 S. E. 219 (au99 N. Y. Supp. 737, affirmed in (1907) thorizing justices of the peace to abol187 N. Y. 535, 80 N. E. 1116, it was ish the office of treasurer of the coun. held that a city board of education, ty),

B. B. B.

Abuse of process use of criminal process to collect debt.

1. An action will not lie for abuse of process against one who, after causing the arrest of a debtor, under a statute making it a misdemeanor to borrow money to make a crop and then refuse to comply with the conditions of the loan, releases the debtor upon his giving security for the debt, where another statute permits a compromise of prosecutions for misdemeanors for which there is a remedy by civil action, although the method provided by the statute was not followed. (See note on this question beginning on page 233.]

as

- right of action.

Statutes construction ejusdem 2. Abuse of process,

distin- generis. guished from malicious prosecution, 9. A statute permitting compromise and from false imprisonment, may when one is held to answer a charge constitute an independent cause of of assault and battery, or other misaction.

demeanor for which there is a remedy [See 1 R. C. L. 102.]

by civil action, is not limited to mis- what constitutes.

demeanors of the same nature as as3. An action for abuse of process

sault and battery, under the rule of lies for the improper use of regularly ejusdem generis. issued process, not for maliciously Malicious prosecution — effect of comcausing process to issue, or for the promise. unlawful detention of the person.

10. A voluntary compromise of a [See 1 R. C. L. 102.]

criminal prosecution by the procurewhat necessary to show.

ment or with the consent of the ac4. Malice in the suing out of process

cused in itself defeats a recovery in a is not an element of an action for

subsequent action for malicious prosabuse of process, but malicious mis- ecution based upon the criminal prouse, or abuse of process properly sued

ceeding. out, must be alleged and proved.

[See 18 R. C. L. 26.) [See 1 R. C. L. 104.]

Abuse of process — want of probable Evidence- presumption of malice.

cause. 5. Malice is implied from an inten

11. The element of want of probable tional and wilful perversion of proc

cause is immaterial in actions for

abuse of process. ess lawfully sued out, to the unlawful injury of another.

[See 1 R. C. L. 104.] [See 1 R. C. L. 113.]

- question open. Case - doing lawful act.

12. The question of the constitu6. It is a wrong to do a lawful act

tionality of the statute under which in an unlawful way.

process is issued, or the fact that the [See 1 R. C. L. 103.]

claim was barred by the Statute of

Limitations, cannot be raised in an acPleading abuse of process

al- tion for abuse of process. legation of malice.

[See 1 R. C. L. 102.] 7. A complaint in an action to re

Appeal error in instructions. cover for abuse of process need not 13. Error in instructions is harmexpressly charge malice, but if it does

less if, upon the evidence, the verdict not, it must aver facts from which

reached was the only one which could the law implies the malice.

properly have been rendered. [See 1 R. C. L. 113.]

[See 2 R. C. L. 257.] Abuse of process — redress of private

inadmissible evidence. wrong.

14. There is no reversible error in 8. It is illegal to use the criminal the admission of evidence, the excluprocess of the state merely to redress

sion of which could not properly have a private wrong.

produced a different result. [See 1 R. C. L. 108.]

[See 2 R. C. L. 247 et seq.]

ERROR to the Circuit Court for Lunenburg County to review a judgment in favor of defendants in a proceeding to recover damages for abuse of process resulting in an arrest to collect a debt. Affirmed.

The facts are stated in the opinion of the court.

Mr. George E. Allen for plaintiff in (Acts 1912, p. 232), declares "that error.

it shall be unlawful for any person Messrs. Booker, McKinney, & Settle to borrow money from any person, for defendants in error.

firm or corporation conducting a Kelly, J., delivered the opinion of business as sales tobacco warehousethe court:

men upon a written promise or Section 1 of an act of the general pledge to sell with or through said assembly, approved March 11, 1912 person, firm or corporation, any to