#### Mary A. Hines, Administratrix, *vs.*The District of Columbia.

Law. No. 17,146.

Decided September 29, 1879.

1. The plaintiff was appointed by the Board of Fire Commissioners a private in the Fire Department, to be held during good behavior, and at a compensation fixed by law. He was afterwards removed by the board without his consent, and without charges against him, or opportunity to show cause why he should not be removed. It was held, on general demurrer to the declaration setting up these facts, that they did not constitute a- cause of action against the District of Columbia.

2. A cause of action which is essentially founded upon a breach of contract, survives to the personal representative of the injured party.

3. Upon a general demurrer, the court is not confined to the point which is expressly noted in the margin; but if they find that the declaration is bad on other grounds, the demurrer will be sustained.

STATEMENT OE THE CASE.

The declaration reads as follows :

“ The plaintiff sues the defendant for that, heretofore, to wit, prior to the 1st day of February, 1874, the Board of Fire Commissioners of said District duly appointed the said Thomas H. Hines, then in full life, to the place of private in the Fire Department of said District, which said place, by provision of law, was for and during good behavior, and for and at the annual compensation of $720, and being so appointed he, the said Thomas H. Hines, was then and there duly qualified, received into said place, and entered upon the due discharge of the duties thereof, and continued in the faithful discharge of said duties, receiving the said compensation therefor until the first day of Februaiy, 1874.

“And the said plaintiff says that, by virtue of his (the said Thomas H. Hines) appointment, qualification and entrance upon the duties of said place, he became and was entitled to hold the same and to receive from the defendant said annual compensation of $720, so long as he should demean and conduct himself well in said place, and that he was willing and anxious to continue in said place, do said duties, and to receive said annual compensation, and always tendered himself ready so to do. Yet the defendant, in *142violation of the law7 and of the rights of the said Thomas H. Hines, without his consent and against his will, and without any charges preferred against him, and without any notice to him, or any opportunity to defend himself or show cause why he should not be dismissed from said place, wrongfully and arbitrarily removed him from said place, and would not and did not permit him to return thereto and discharge the duties thereof, and receive the compensation therefor, whereby he was deprived of said place, and lost the profits thereof for the residue of his natural life, to the damage of the plaintiff, $2,500, and, therefore, the plaintiff’ brings this suit. And the said plaintiff' brings into court here the letters of administration of the said Supreme Court of the District of Columbia, which give sufficient evidence to the said court here of the grant of administration to the said plaintiff, the date whereof is a certain day and year therein mentioned, to wit, the 19th day of October, 1875.”

The defendant demurred generally, and gave notice that one of the points of law to be argued is, that the alleged cause of action is a tort to the person of the intestate, which does not survive to his administratrix.

An act of the legislative assembly of the District of Columbia, passed August 21,1871, enacts :

“ That thé Board of Fire Commissioners in and for the portions of said District known respectively as the city of Washington and the city of Georgetown, shall have power to appoint such number of persons as now are, or may hereafter be prescribed by law, for the fire departments of their respective localities, who shall hold their places during good behavior, and who, upon trial, may be fined, suspended or expelled ; *provided,*that the accused shall first have written notice of the charges against burn, except, however, in cases of misconduct coming under the personal observation of one or more commissioners,” &c.

By act passed August 23, 1871 (p. 155, Sess. Laws), the assembly empowered this “ board to appoint such number of persons, &c., for the fire department,” “ to hold their places puring good behavior.”

*143The act of June 26, 1873, provided a salary of $720 per annum for a specified number of privates. Sess. Laws, p. 89.

. A. G. Kiddle and Francis Miller, for plaintiff.

The position held by plaintiff was tendered and accepted during good behavior, and while maintaining this, he could not be removed. Mosely on Inferior Courts, p. 30; Harcourt *vs.*Fox, Showers R., 270-320; Owen *vs.*Sanders, 1 Ld. Raymond, 161; Allen *vs.*McKean, 1 Sumner, 276; Regina *vs.*The Guardians of St. Martin’s in The Field, 5 E. L. & E., 367.

If an office or position be conferred “ during good behavior,” and the *“*holder of it ” is removed, it must appear that it was for misbehavior. Otherwise, the removal will be void.

In all cases where an office or position is held *“*during good behavior,” there is an implied prohibition of removal for any other reason ; and “there must be some jurisdiction to determine whether the reason of a removal was valid or not.”

A court in such case must “judge both the cause and form of the removal.”

William A. Meloy on the same side :

It is said we have no cause of action because Hines’ •expulsion was immediately the act of the Board of Fire Commissioners, who, by law, could not remove in this way, and so the District of Columbia is not liable for their unlawful act.

This is said in reliance on the principle that there can be no corporate liability when the act complained of is not authorized by the legislative enactment. But the board was authorized to remove as well as to appoint. They were expressly given full jurisdiction in the premises. Removal was within the scope of their powers, and the rest is merely directory of the manner of their action'. Had the city surveyor discharged Hines, of course the District would not have been liable, even had he forcibly barred him out from the engine house. A railroad corporation employs an engi*144neer to run its train of cars. In doing so, he runs over a man, with circumstances of great carelessness. The corporation is liable. But the corporation directed him to run with great care, not exceeding twenty miles an hour, and to whistle at each crossing ; yet he ran without care, sixty miles an hour, and did not whistle, and so the wrong was done. This does not relieve the corporation. The running of the train was his business. To run carefully was the law of his employment, but he violated it. The removal from office was the business of the board ; to remove by due trial with notice was the law ; but they violated it.

In the Albany Bridge Case, to build at all was without authority, and so the building badly caused no liability. 2 Dill, on Corp., § 767, and note.

An officer improperly removed may sue the corporation for his salary for the time intervening his removal and the expiration of his term. Stadler *vs.*Detroit, 13 Mich., 346; Shaw *vs.*Mayor, &c., 19 Geo., 468; Hadley *vs.*Mayor of Albany, 33 N. Y. 603.

In the last case cited, a policeman was removed from office, rendered no service, died ; and yet suit for his intervening salary was sustained in every court.

Salary differs from fees. Salary is the compensation due the officer *de jure.*JFees belong to the officer *de facto*who has performed the service.

The declaration says the District afterwards recognized and adopted the act. This made the removal, with all the incidents of the act, its own. Sherman *vs.*Granada, 51 Miss.,, 186.

Birney & B.irnby for defendants :

The ground of defense in this case, as shown by the note to the demurrer, is that the cause of action, being a tort committed against the person of the deceased, did not survive to his administratrix, and she cannot maintain suit upon it.

The declaration alleges the wrongful and arbitrary removal of the decedent from employment, for which the plaintiff-claims *damages.*The plea, if one is interposed in such a ease,, must be “ not guilty.”

*145But it was a well-established “ principle of the law, that if an injury was done either to the person or property of another, for which *damages*only could be recovered in satisfaction, the action died with the person *to*whom or *by*whom the wrong was done.

“ Where the action was founded on any malfeasance or misfeasance, was a tort, or arose *ex*delicto, the rule was *actio personalis moritur cum persona.*This rule still applies in full force to injuries affecting the person.

“ Therefore, for injuries done merely to the person of the deceased, where the declaration in the action * * * imputes a matter sounding merely in tort to the person, and the plea of the general issue must be *not guilty,*his executor or administrator has no claim to damages, and can maintain no action for the recovery thereof.” 1 Lomax on Executors, (2d ed.), 470; 1 Williams on Executors, (2d ed., 559.)

The rule above quoted is unchanged in this District. Chichester *vs.*Union Transfer Co., 1 Mac Arthur, 295.

Where the wrong-doer received no benefit from the act complained of, the entire cause of action dies upon the death of either of the parties. 2 Addison on Torts, 538, (note), 540, (note.)

The principles above quoted apply in their fullest extent to the case at bar, and as they are sustained by every textbook and decided case touching in any way upon the question, we deem it unnecessary to make other citations.

Mr. Justice Cox

delivered the opinion of the court:

After stating the case, he proceeded :

A general demurrer is filed, and one of the points noted for argument is, that the wrong complained of is a tort to the person which does not survive. The only torts to the person that we are familiar with are torts.involving physical violence to the person, or nuisances affecting personal health or comfort or injuries to the reputation. It is evident that none of these is the gravamen of this case ; it is not brought for any physical injury to the person, but for injury to property and contract rights. The allegations *146essential in an action of this kind would be, that the decedent undertook and promised to perform certain duties for the defendant, and that the defendant promised certain compensation therefor ; that plaintiff was ready and willing to perform those duties, and was prevented from so doing by the defendant ; and a very slight emendation of the declaration in this case would convert it into one of that tenor. It is essentially a case which arises *ex*contractu, and it is clear that such a cause of action does survive to the personal representative. We, therefore, do not think the point of law which was made below, as one of the grounds of demurrer was sufficient to sustain it. But upon general demurrer, we are not confined to the points which may have been expressly noted, and if we find that the declaration cannot be sustained on any ground, it is our duty to say so.

This, therefore, brings us to the question whether on any ground the declaration is demurrable.

It is to be observed, in the first place, that this office from which the decedent was ousted, was not originally created by an act of Congress, but was purely a creature of the District government under a law passed by that government, and one under ordinary circumstances which it could repeal at pleasure. The complaint here in the declaration, as amended by consent, is that the defendant, that is to say its Board of Fire Commissioners, contrary to the law, &c., removed the decedent from office. If the Board of Fire Commissioners removed the decedent from office in violation of the law of this District, it would be simply void and inoperative as affecting the rights of the decedent.

But the complaint is against the District of Columbia; the responsibility for this act is charged upon the District. How it became the act of the District is not explained. The only mode in which it could be as we understand it, is by legislation either authorizing or ratifying the act, and as far as this might conflict with existing law, it would be repealing legislation. Dnder ordinary circumstances, it would be perfectly within the power of the District government to repeal any of its own laws. However that *147may be, it is sufficient for our inquiry, that the act complained of is complained of as the act of the District government ; it is averred to be the act of the District government, and the demurrer admits that fact; and the question arises whether the District government may remove a person from office without cause, and in a manner different from that which the existing laws provide, who has been appointed under those laws to hold during good behavior.

It seems to us, in the first place, that this legislation was intended to prescribe a rule of action for the Board of Fire Commissioners ; they were authorized to appoint to, and to remove their subordinates from office, and it is against them and their power of removal, thus provided, that the incumbents are to hold during good behavior. They, the board, were not to have power to remove, except upon charges and an opportunity being given to the party complained of to appear and answer, in a quasi-judicial proceeding. But this was not intended as a restriction of legislative power. A legislative body cannot pass a law, which it cannot repeal at pleasure, except in a case where the law is something more than a mere law, and amounts to a contract with the citizen : and there is no ground on which Hines’ right to hold his office in spite of the District government can be plausibly maintained, except that his appointment, having reference to the existing laws, was a contract between him and the District government that he should hold office during good behavior.

Has, then, an appointment to a public office any such operation ? We think this question is answered for us by the Supreme Court of the United States. In the case of Butler et al. *vs.*The State of Pennsylvania, 10 How., 404, Butler and others had been appointed canal commissionei’s under a law which provided that they should hold their offices from the first of February for one year, and that their compensation should be four dollars per diem. In the midst of the year, in April, 1843, the legislature passed another law that the compensation shonld be only three dollars per diem, and in the following October the com*148missioners should be elected by the people ; thus both cutting off the term of office and reducing the compensation In a controversy with the accounting officers of the State, these commissioners claimed that their appointment was a contract, in virtue of which they were entitled to compensation for the full year, and this contract was protected by the Constitution of the United States against State legislation. But the Supreme Court said :

“ The contracts designed to be protected by the tenth section of the first article of that instrument (the Constitution of the United States) are contracts by which *perfect rights, certain, definite, fixed, private rights*of property are vested. These are clearly distinguishable from meásures or engagements adopted or undertaken by the body politic or State government for the benefit of all, and from the necessity of the case, and according to universal understanding, to be varied or discontinued as the public good shall require. The selection of officers, who are nothing more than agents for the effectuating of such public purposes, is matter of public convenience or necessity, and so too are the periods for the appointment of such agents ; but neither the one nor the other of these arrangements can constitute any obligation to continue such • agents, or to re-appoint them after the measures which brought them into being shall have been found useless, shall have been fulfilled or shall have been abrogated as even deterimental to the well-being of the public. The promised compensation for services actually performed and accepted, during the continuance of the particular agency, may undoubtly be claimed, both upon principles of compact and of equity; but to- insist beyond this on the perpetuation of a public policy, either useless or detrimental, and 'upon a reward for acts neither desired nor performed, would appear to be reconcilable with neither common justice nor common sense. The establishment of such a principle would arrest, necessarily, everything like progress or improvement in government ; or if changes should be ventured upon, the government would have to become one great pension establishment on which to quarter *149a host of sinecures. It would especially be difficult, if not impracticable, in this view, even to remodel the organic law of a State, as constitutional ordinances must be of higher authority and more immutable than common legislative enactments, and there could not exist conflicting constitutional ordinances, under one and the same system. It follows, then, upon principle, that in every perfect or competent government, there must exist a general power to enact and to repeal laws ; and to create and change or discontinue the agents designated for the execution of those laws. Such a power is indispensable for the preservation of the body politic, and for the safety of the individuals of the community.”

They further refer to a case in Pennsylvania, in which it is said by Justice Duncan, delivering the opinion of the court :

“ These services, rendered by public officers, do not, in this particular, partake of the nature of contracts, nor have they the remotest affinity thereto. As to a stipulated allow'ance, that allowance, whether annual, *per diem*or particular fee' for particular services, depends on the will of the lawmakers ; and this, whether it be the legislature of the State, or a municipal body empowered to make laws for the government of a corporation. This has been the universal construction. * * * The allowances, the compensation, the salary, the ,fees, of all other officers and members of the legislature depend on the legislature, who can, and who do, change them, from time to time, as they conceive just and right.”

We have been referred, in the brief, to three State decisions, in which the right of officers, irregularly removed from office, to sue for their salaries, has been sustained. One was Hadley *vs.*The Mayor of Albany, 33 N. Y., 603. But upon examination of the case w:e find that the officer, who was a policeman of the city of Albany, was appointed under a State law, and not under an ordinance of the city of Albany. The state law provided the manner in which he should be appointed and removed ; and the removal com*150plained of was held by the court not to be in compliance with the law of the State. It never seemed to have occurred to anybody that this would have involved a claim for damages against the State, if the State has sanctioned the removal in the way in which it was made. The other two cases are precisely of the same description. These cases steer clear of the rule laid down by the Supreme Court and which must be govern this case.

"We hold, therefore, that upon the face of this declaration, the plaintiff has no right of action, and that the demurrer below was properly sustained.