#### People *ex rel.*John F. Bridgeman, Resp’t v. Benjamin H. Hall, Appl’t.1

*(Court of Appeals,*

*Filed January*18, 1887.)

1. Office and Officer — Chamberlain — City of Troy, New York — Interim Appointment.

The charter of the city of Troy provides: “In the event of sickness of the chamberlain,'if he shall neglect to appoint some suitable person to discharge the duties of the office, the Mayor may appoint some suitable person, to be approved by the common council, to discharge the duties of such officer during such sickness or absence.” The Mayor in a communication addressed to the common council after reciting that “ Henry S. Church, the chamberlain of the city, had abandoned his office and according to accounts had left the city,” and also, that a partial examination of his accounts rendered it morally certain that he was a defaulter, concluded as follows: “ Under these circumstances and in pursuance of the provisions of the charter, I do hereby appoint, subject to your approval, Benjamin P. Hall, to discharge the duties of the office of chamberlain during the absence of Henry S. 'Church.” The appointment of Hall was duly approved by the common council, and he subsequently entered upon the duties of the office. He afterwards insisted that although the appointment on its face was an *ad interim*one, yet that it was in legal effect an appointment, for the full term *579of three years, for the reason that the Mayor, under the circumstances existing at the time, had no power to make a temporary appointment, but did have power to nominate a chamberlain for a full term and none other. *Held,*that the restrictive words in the appointment could not be disregarded without changing the essential character of the appointment; and if the power to make a temporary appointment could not, under the circum-stauces, be exercised, then the appointment was void, and did not inure as an appointment for a full term.

*2.*Same — Res Ad.tudicata — Estoppel.

A former judgment which by its terms expressly disclaims any decision of the matter in controversy, notwithstanding it may be inferred as a necessary sequence to the fact found that the question at issue was really decided, cannot operate as an estoppel.

Appeal from a judgment of the supreme court, general term, third department, affirming a judgment of the Rensselaer county circuit, in favor of the relator on a writ of *quo warranto*to try the title to the office.

*Esek Cowen,*for appl’t; *li. A.*Parmenter, *Merritt*and *Ryan*and *William J.*Roche, for resp’t.

1

 Affirming 39 Hun, 653*mem.*

Andrews, J.

We think the judgment should be affirmed, and shall content ourselves by stating briefly the reasons for this conclusion.

The controversy relates to the title of the office of chamberlain of the city of Troy, at the time of the commencement of the action, in September, 1885. The relator claims title by virtue of his nomination by the mayor, May 21, 1885, for the office of chamberlain, “ for the ensuing term of three years,” and its confirmation, under the provisions of the charter, by the failure of the common council to reject the same. The defendant claims title under a written appointment, contained in a communication addressed by the mayor to the common council, dated February 7, 1884, in which the mayor, after reciting that “ Henry S. Church, the chamberlain of the city, had abandoned his office, and, according to accounts, had left the city,” and also that a partial examination of his accounts rendered it morally certain that he was a defaulter, concluded as follows: “ Under these circumstances, and in pursuance of the provisions of the charter, I do hereby appoint, subject to your approval, Benjamin F. Hall to discharge the duties of the office of chamberlain during the absence of Henry S. Church.” The communication was received by the common council on the day of its date, and the appointment of Hall was thereupon approved by a majority vote of the council. It is insisted by the defendant that, although the appointment on its face was an *ad interim*one, it was in legal effect an appointment for the full term of three years, for the reason that the mayor, under the circumstances existing at the time, had no power to make a temporary appointment, but had power to nominate a chamber*580lain for a full term, and no other, and that the appointment and confirmation of Hall must be referred to the power actually existing, and not to that attempted to be exercised, and that the restriction contained in the terms of the appointment was therefore nugatory. If this contention is well founded, the defendant was the rightful incumbent of the office in September, 1885, as his term would not expire until February 7, 1887. If, on the other hand, the appointment of Hall was valid as an *ad interim*appointment only, or was wholly void, and these questions are now open for decision, notwithstanding the adjudication in the former action, then it is conceded that the relator is entitled to the office under the nomination and confirmation of May 21,1885. It is plain that, if the appointment of Hall was valid only as a temporary appointment during the absence of Chamberlain Church, his right to hold the office expired on the resignation of Church, April 2, 1884, or, at all events, on the-expiration of Church’s term, October 7, 1884. In either case-there was a vacancy in the office May 21,1885, which could be filled by a nomination and an.appointment for a full term. The main question is as to the character and legal effect of Hall’s appointment, February 7, 1884.

The chamberlain, under the Troy charter, is to be nominated by the mayor, and confirmed by the common council, and has a term of three years. The charter also contains this provision: “ In the event of the sickness or absence of the chamberlain, if he shall neglect to appoint some suitable person to discharge-the duties of the office, the mayor may appoint some suitable, person, to be approved by the common council, to discharge the duties of the office during such sickness or absence.” The appointment of Hall plainly indicatéd on its face that it was an attempt to exercise the power conferred by this provision, and that it was not intended as a nomination for a full term. It assumed that there was no vacancy in the office, but that circumstances existed which justified the exercise of the power to make a temporary appointment under the provision referred to. It is insisted, however, that the exigency contemplated by the charter had- not arisen, and that the mayor had in fact no authority to make a temporary- appointment for the reasons— *Mrst,*that Church, although he had acted as chamberlain under a regular appointment for one full term and part of a second term, was never in fact chamberlain *de jure,*by reason of not having filed a proper bond, and that, therefore, no acting chamberlain could be appointed in his place, he being an officer *de facto*merely; *second,*that the defalcation and flight of Church was not such an absence as was contemplated by the charter; and, *third,*that his flight from the .city, with an intention not-to return to Troy, as is found, was an abandonment of the office, and a removal from the city, which created a vacancy,, which could be filled only by an appointment for a full term.

*581"We deem it unnecessary to- consider whether, under the circumstances disclosed, the power to make a temporary appointment existed on February 7, 1884. It is clear that the mayor supposed he had the power, and undertook to exercise that power, and that alone. Assuming that the mayor had no power to make a temporary appointment, for any or all the reasons urged, the necessary result upon that assumption is, we think, that the attempted appointment of Hall was a nullity. The mayor has power by the charter, in case of a vacancy, to nominate for a full term, and also a power to appoint for a temporary period, .viz., during the absence of the incumbent. He has, in other words, two distinct powers relating to the same general subject, one of which he attempted to exercise, and so declared; but it turns out that his only authority in the particular contingency was to exercise the other power, which he did not intend or -attempt to exercise, but plainly excluded from his consideration. It is sought to make his act stand as an execution of the other power, contrary to his intention. We find no authority jixstifying such a contention. Under the general principle of agency and powers, such a result is excluded. Lord Coke says, (Co. Litt. 2586:) “ Regularly, it is true that when a man doth less than the commandment or authority committed unto him, then, the commandment or authority being not pursued, the act is void. And when a man doth that which he is authorized to do, and more, that is good for that which is warranted, and void for the rest. Yet both these rules have divers exceptions and limitations.” See, also, Sugd. Powers, *c.*5. Where an agent does an act in excess of his authority, and the excess is separable, the act in many cases may stand so far as it is authorized, and for that the principle may be bound. But where an agent or the donee of a power does a different thing from what he is authorized to do, and what he does is intended as an exercise of one of several powers, and he does the act for one purpose, and in the assumed exercise of one specific power,» it would seem to be contrary to reason to treat the act as done under a different power, and make it binding, contrary to the intention.

There are certainly very strong reasons, founded in public policy, against permitting a person to claim and hold a public office in such a case and under such circumstances as are disclosed in this record, against the intention, and through the mere mistake, of the appointing power as to the existence of extrinsic facts, supposed to exist, and which, if they had existed, would have rendered the appointment valid according to its “ terms. It might very well be that the public interests would, in the judgment of the mayor and common council, require a different appointment for a full term than for a temporary period. The restrictive words in the appointment cannot be *582disregarded without changing the essential character of the' appointment. They constitute an integral part of the transaction, and cannot be separated from the prior words without subverting the whole intention of the appointing power.

We conclude, therefore, that if the power to make a temporary appointment could not, under the circumstances, be exercised, the appointment of Hall was void, and did not inure as an appointment for a full term.

The question involved in the Michigan cases *(People*v. *Lord,*9 Mich. *227; Stadler*v. *City of Detroit,*13 Mich. 346) is not represented. There the appointing power attempted to exercise a power of appointment clearly defined, but, by inadvertence or misapprehension, put a limitation upon the appointment which was unauthorized. Here upon the assumption made, an attempt was made to exercise a special power, which, under the circumstances, could not be exercised for any purpose or to any extent whatever ; and there was no attempt to exercise the actual power.

The remaining question arises in respect to the estoppel of the former judgment. The prior action was founded upon the title of the relator, under his prior nomination and appointment of January 15, 1885. The defendant set up, as in this case, his appointment of February 7, 1884. Judgment was rendered in that action against the relator, and in favor of the defendant. It is now insisted that the judgment is conclusive that the appointment of Hall was for the full term of three years from February 7, 1884. It Is clear that this point was not adjudicated on the face of the judgment. On the contrary, the judgment, while affirming the title of the defendant to the office, expressly declares that it was not decided, nor intended to be decided, whether he was legally chamberlain under a temporary appointment, or under an appointment for a full term of three years; but the argument is that as the only title which Hall had was-under the appointment of February 7, 1884, the judgment necessarily determines that that appointment was a valid *one;*and, as the judgment further determined that Hall was the rightful chamberlain when the judgment was rendered, (June 6, 1885,) and as this could not be true if the appointment was a temporary one only, it follows that the appointment of February 7,1884, must have been for a full term, and must ha've been so determined. The judgment, doubtless, did determine that the appointment of February 7, 1884, was a valid appointment. But tins concession does not help the defendant in raising an estoppel, unless he can show further that the judgment also determined that the appointment was for a full term. This-point the court expressly refused to decide. It is sought to be inferred, as a necessary sequence to the fact found, against the express disclaimer in the judgment itself; but it is a decisive *583answer to the defense of *res adjudicata*that judgment passed against the relator in that action on a ground which is utterly inconsistent w.ith an adjudication that Hall’s appointment was for a full term. In that action both the title of the relator and of the defendant were in issue. The relator was defeated on the ground that he had omitted to give, a proper bond, under the appointment of January 15, 1885, and so the judgment declares. This clearly implies that, but for this omission, his title to the office under that appointment would have been valid. This could not be so if the appointment of Hall was for a full term, as that term would not expire till February 7, 1887. The most that the defendant is entitled to claim is that the judgment contains contradictory and inconsistent implications, one that the appointment of February 7, 1884, was for a full term, and the other that it was a temporary appointment only. Under this situation, the matter is set at large, and the judgment constitutes no estoppel. It comes within the qualification stated in the *Duchess of Kingston’s*Case, 20 State Tr. 355, that a judgment is not conclusive of “ any matter to be inferred by argument from the judgment.” It is unnecessary to consider the grounds urged against the conclusiveness of the former adjudication.

The former judgment not being in the way of an adjudication of the case upon the merits, we are of opinion that, for the reason stated, the -judgment should be affirmed.

All concur.