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Kentucky.-Williams, v. Newport (1876) 12 Bush, 438; Frankfort v. Brawner (1896) 100 Ky. 166, 37 S. W. 950, 38 S. W. 497.

Massachusetts.-Chandler v. Lawrence (1880) 128 Mass. 213.

Missouri. Primm v. Carondelet (1856) 23 Mo. 22; Magner v. St. Louis (1903) 179 Mo. 495, 78 S. W. 782 (holding, however, that the plaintiff was only an employee).

New Jersey.-Butcher v. Camden (1878) 29 N. J. Eq. 478; McCann v. New Brunswick (1905) 73 N. J. L. 161, 62 Atl. 191; McBride v. Bayonne (1907) 74 N. J. L. 398, 65 Atl. 895.

New York.-Wittmer v. New York (1900) 50 App. Div. 482, 64 N. Y. Supp. 170.

Ohio. State ex rel. Atty. Gen. v. Jennings (1898) 57 Ohio St. 415, 63 Am. St. Rep. 723, 49 N. E. 404 (obiter); Toledo v. Lake Shore & M. S. R. Co. (1889) 2 Ohio C. D. 450; State ex rel. Herrick v. Searay (1909) 31 Ohio C. C. 83 (conceded).

Oklahoma. Shawnee

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V. Cotteral

(1913) 37 Okla. 79, 130 Pac. 548; SHAWNEE V. HEWETT (reported herewith), ante, 195.

Tennessee. Waldraven V. Memphis (1867) 4 Coldw. 431.

Texas.-Palestine v. West (1896) Tex. Civ. App., 37 S. W. 783.

Utah.-McAllister v. Swan (1897) 16 Utah, 1, 50 Pac. 812; Heath v. Salt Lake City (1898) 16 Utah, 374, 52 Pac. 602.

Thus a city having been empowered to organize a fire department, and having done so and selected a chief of it and fixed his term at two years, might abolish the department and the chief's office during his term. Williams v. Newport (1876) 12 Bush (Ky.) 438.

Where the statute required fivesevenths of the votes of all members of the city council to pass any act involving the expenditure of money, a majority vote on a matter involving the expenditure of money and abolishing an office created by the council I will be valid so far as the abolition of the office is concerned. Wittner v. New York (1900) 50 App. Div. 482, 64 N. Y. Supp. 170.

The legislature by conferring upon

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the common councils of cities general power to enact ordinances for the protection and security of property, the preservation of good order, and for the safety and welfare of their inhabitants, plainly includes the police and police power of such cities, and enables such councils to abolish any position or office they deem unnecessary connected with or incident to the police government of the city unless otherwise forbidden. People ex rel. Dunn v. Ham (1901) 166 N. Y. 477, 60 N. E. 191.

An office created by ordinance may be abolished by ordinance.

Alabama.-Oldham v. Birmingham (1893) 102 Ala. 357, 14 So. 793.

Connecticut.-State ex rel. Rylands v. Pinkerman (1893) 63 Conn. 176, 22 L.R.A. 653, 28 Atl. 110.

Georgia. Augusta V. Sweeney (1871) 44 Ga. 463, 9 Am. Rep. 172.

Missouri. Primm V. Carondelet (1856) 23 Mo. 22; Magner v. St. Louis (1903) 179 Mo. 495, 78 S. W. 782 (where, however, the court held that the plaintiff was only an employee). New Jersey.-McBride v. Bayonne (1907) 74 N. J. L. 398, 65 Atl. 895.

Ohio. State ex rel. Atty. Gen. v. Jennings (1898) 57 Ohio St. 415, 63 Am. St. Rep. 723, 49 N. E. 404 (obiter); Toledo v. Lake Shore & M. S. R. Co. (1889) 2 Ohio C. D. 450.

South Carolina.-Stone v. Mahon (1911) 88 S. C. 576, 71 S. E. 300. Tennessee.-Waldraven v. Memphis (1867) 4 Coldw. 431.

Texas.-Palestine v. West (1896) Tex. Civ. App., 37 S. W. 783.

An act of the legislature established a board of commissioners of police for a certain city, and authorized them to appoint such police officers as might be prescribed by city ordinance; it. was held that the city by ordinance might abolish the office of sergeant of police after the board had appointed a person to that position. Oldham v.. Birmingham (1893) 102 Ala. 357, 14 So. 793.

But a city authorized to create offices by ordinance could not by resolution abolish an office it had created by ordinance. San Antonio v. Micklejohn (1895) 89 Tex. 79, 33 S. W. 735.

When an ordinance of a city council creates an office and provides that the officer may be removed at the pleasure of the council, a repeal of the ordinance removes the officer. Chandler v. Lawrence (1880) 128 Mass. 213. A city having power by ordinance to establish a court may abolish it and the office of its judge by repealing the ordinance. Stone v. Mahon (1911) 88 S. C. 576, 71 S. E. 300, referring as not in conflict to Hardy v. Reamer (1909) 84 S. C. 487, 66 S. E. 678, where the legislature gave cities of a certain class power and authority to establish a board of police commissioners, and a city established such a board by ordinance, and it was held that the offices so established could not be abolished by ordinance of the city. The court considered that the offices were state offices and said: "The power given the mayor and aldermen is that of electing or appointing members of the board provided for by the act. In exercising this power they act as executives, as the appointing to office is an executive and not a legislative function. Having exercised this power by electing or appointing plaintiffs to the offices provided for by the act, and being neither authorized to remove such officers nor to abolish such offices, created by a superior sovereignty, their power is exhausted, and they cannot remove plaintiffs, either directly or by abolishing their offices, so long as their terms are unexpired."

A city cannot without leave abolish an office created by the legislature. Marquis v. Santa Ana (1894) 103 Cal. 661, 37 Pac. 650.

In Fenet v. McCuiston (1912) 105 Tex. 299, 147 S. W. 867, it was held that a proviso of power to a city council to abolish certain charter offices "above named" was limited to those named in the same section of the statute, and did not include officers named in preceding sections.

Where an act of the legislature amending a municipal charter provided that the city "shall be and is authorized to create the office of city tax receiver," prescribed his duties and the mode of his election by popular vote, and declared that he should be

elected for a term of two years, after the municipal authorities had passed an ordinance creating the office of city tax receiver, and the officer to fill such place had been duly elected for the term fixed by the charter and qualified, it was not within the power of such municipal authorities, at their option, during such term, to abolish the office. Wilson v. Dalton (1910) 135 Ga. 240, 69 S. E. 163.

The mayor may not discontinue an office when the power to do so is lodged by the charter with the council. Foster v. Hindley (1913) 72 Wash. 657, 131 Pac. 197.

And where the power to appoint and remove police officers is vested in the mayor and aldermen, the aldermen alone without the mayor may not in his presence discharge the police force. Murphy v. Webster (1881) 131 Mass. 482, where the court said: "Unless otherwise provided by Constitution or statute, the power of removal is incident to the power of appointment. Cujus est instituere, ejus est abrogare."

The following cases on the reduction in or stoppage of pay by a city are of interest in this connection:

In Neumeyer v. Krakel (1901) 110 Ky. 624, 62 S. W. 518, it was held that the power of the common council of a city to reduce the number of police officers was not taken away by a voluminous statute giving a board of safety large powers in regard to the public, the court considering that the general legislative power of the city vested in the common council could not be impaired except in explicit terms.

Similarly, it has been held that a city may reduce or stop the pay of an office created by it. Barker v. Pittsburgh (1846) 4 Pa. 49.

A city ordinance created the office of police court bailiff to be appointed. by the mayor with the consent of the council biennially. The statute provided for the fixing of salaries of city officers in the annual appropriation bill or ordinance. After the salaries had been fixed and appropriated for the year the plaintiff was appointed police court bailiff. The next year the

city made no appropriation for the office and he was removed. It was held he could not recover any salary for the second year. Turner v. Chicago

(1898) 76 Ill. App. 649.


Where the statute provided that the common council of a city shall fix the compensation of officers, but that such compensation shall not be diminished during the term, after an officer had qualified for an office the salary of which in the preceding year $1,200, the council, upon his assumption of the duties, fixed the salary at $5; it was not averred that the duties were the same as heretofore, nor how much time they took, nor that the action of the council was factious. It was held that improper motives of the council could not be inferred. Wesch v. Detroit (1895) 107 Mich. 149, 64 N. W. 1051.

Where a city is authorized by charter to fix the pay of an officer, the discretion will not be reviewed by the courts further than to consider whether the pay is fixed at so small a sum as practically to abolish the office in that no competent person can be found to perform it, the court apparently considering that it could only consider the ordinance fixing the pay and facts of which it could take judicial notice. De Merritt v. Weldon (1908) 154 Cal. 545, 98 Pac. 537, 16 Ann. Cas. 955.

In State ex rel. Thurmond v. Shreveport (1909) 124 La. 178, 134 Am. St. Rep. 496, 50 So. 3, it was held that a city could not reduce the salary of the charter and necessary office of auditor to an amount so low that no competent person would accept the office. The court distinguished State ex rel. Gentry v. Dodson (1909) 123 La. 903, 49 So. 635, holding that a village having statutory power to fix the compensation of an office may fix it at a trifling amount, as having been decided under circumstances of general imperative economy.

In State ex rel. Kercheval v. Nashville (1885) 15 Lea (Tenn.) 697, 54 Am. Rep. 427, it was held that under a statute providing that in cities of a certain class the compensation of the mayor shall be $2,400, and may be changed by ordinance, a city may not

provide by ordinance that there should be no compensation.

VIII. Abolition by other bodies. For cases of authorization by the legislature to inferior bodies to abolish offices, see VI. c (2) supra.

A county board may abolish a position it has created. State, Evans, Prosecutor, v. Hudson County (1891) 53 N. J. L. 585, 22 Atl. 56.

A county empowered by the legislature to create an office may, if unrestricted, abolish it. State, Greene, Prosecutor, v. Hudson County (1882) 44 N. J. L. 388 (dictum); Hatfield v. County Ct. (1917) 80 W. Va. 165, 92 S. E. 245.

It was held in Proulx v. Graves (1904) 143 Cal. 243, 76 Pac. 1025 (where the holding incumbents were not to be affected) that a constitutional court of justice of the peace may be eliminated by a consolidation of townships made by a county authorized by general statute.

But where a Constitution provided that there should be a justice of the peace in each precinct, with a proviso that in precincts of over 5,000 the number might be increased as may be provided by law, and the statute authorized county boards where a precinct had over 20,000 to appoint an additional justice for each 20,000, it was held that the county board, after having appointed an additional justice, could not reduce the number. Pueblo County v. Smith (1896) 22 Colo. 534, 33 L.R.A. 465, 45 Pac. 357.

And where the governor is to appoint a health officer in each county and the county is to fix the salary, the county, after such salary has been fixed, may not reduce it to a nominal De Soto County v. Westbrook (1886) 64 Miss. 312, 1 So. 352.


A town which created by resolution an office not provided for by the charter may abolish it by resolution. Raley v. Warrenton (1904) 120 Ga. 365, 47 S. E. 972.

Where a state board is authorized to appoint such a number of certain underofficers as it deems necessary, who shall hold for a term of four years, the board may abolish the office

and thereby discharge an incumbent. Ford v. State Harbor Comrs. (1889) 81 Cal. 19, 22 Pac. 278.

It may be noted that it has been held that, upon the abolition of a state board without a saving clause as to its appointments, the authority of those persons who merely held office State ex during its pleasure ceases. rel. Carter v. Public Lands & Buildings (1878) 7 Neb. 42.

Where principals, teachers, etc., of the educational staff were to continue to hold their respective positions subject to removal for cause and subject to the right of a city board of education to abolish unnecessary positions, it was held that the board had power to reorganize the four evening high schools in one of the city boroughs into two evening high schools for males and two for females, and to appoint the female female principals to

schools, and thus to oust two of the four males who had been principals of the four evening high schools. Cusack v. Board of Education (1903) 174 N. Y. 136, 66 N. E. 677; O'Leary v. Board of Education (1903) 174 N. Y. 511, 66 N. E. 1113.

In People ex rel. Connolly v. Board of Education (1906) 114 App. Div. 1, 99 N. Y. Supp. 737, affirmed in (1907) 187 N. Y. 535, 80 N. E. 1116, it was held that a city board of education,

having created a position, had power to abolish it, if it became unnecessary.

In Farley v. Gilbert (1903) 24 Ky. L. Rep. 2109, 72 S. W. 1098, it was held that the statute did not give a county superintendent of schools such arbitrary power as to enable him to abolish two adjacent school districts in his county, and immediately reestablish them by different numbers, comprising substantially the same territory, and thereby remove from office the trustees holding in the former district.

In People ex rel. Archbold v. Health Dept. (1886) 24 N. Y. Week. Dig. 197, it was held that the health department of the city of New York must dismiss persons when that is necessary on account of the size of the appropriations.

The civil service commission of Chicago is not an independent body, but a department or bureau of the city, and has no power to abolish an office created by the common council. People ex rel. Jacobs v. Chicago (1916) 202 Ill. App. 105.

Sometimes the Constitution contains direct authority to abolish an office. State ex rel. Rhodes v. Hampton (1888) 101 N. C. 629, 8 S. E. 219 (authorizing justices of the peace to abolish the office of treasurer of the counB. B. B. ty).

J. Y. GLIDEWELL, Plff. in Err.,



Virginia Supreme Court of Appeals - March 13, 1919.

Abuse of process

(Va. - 98 S. E. 665.)

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.]

4 A.L.R.-15.

-right of action.

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2. Abuse of process, as distinguished from malicious prosecution, and from false imprisonment, may constitute an independent cause of action.

[See 1 R. C. L. 102.]

-what constitutes.

3. An action for abuse of process lies for the improper use of regularly issued process, not for maliciously causing process to issue, or for the unlawful detention of the person. [See 1 R. C. L. 102.]

what necessary to show.

4. Malice in the suing out of process is not an element of an action for abuse of process, but malicious misuse, or abuse of process properly sued out, must be alleged and proved. [See 1 R. C. L. 104.] Evidence-presumption of malice.

5. Malice is implied from an intentional and wilful perversion of process lawfully sued out, to the unlawful injury of another.

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

Case doing lawful act.

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6. It is a wrong to do a lawful act in an unlawful way.

[See 1 R. C. L. 103.] Pleading abuse of process legation of malice.


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[See 1 R. C. L. 104.]
question open.

12. The question of the constitutionality of the statute under which process is issued, or the fact that the claim was barred by the Statute of Limitations, cannot be raised in an action for abuse of process.

[See 1 R. C. L. 102.] Appeal

error in instructions.

13. Error in instructions is harmless if, upon the evidence, the verdict reached was the only one which could properly have been rendered. [See 2 R. C. L. 257.]

inadmissible evidence.

14. There is no reversible error in the admission of evidence, the exclusion of which could not properly have produced a different result.

[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

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(Acts 1912, p. 232), declares "that it shall be unlawful for any person to borrow money from any person, firm or corporation conducting a business as sales tobacco warehousemen upon a written promise of pledge to sell with or through said. person, firm or corporation, any to

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