"Garbage"; and one requiring a lot-owner to remove filth from a private way adjoining his land; also one cutting off gas and water from consumers delinquent for ten days; also forbidding the carrying of deadly weapons, or removing house-dirt or offal through the streets.17 16 47. Procedure.-A penalty is a necessary part of an ordinance; but power of forfeiture or imprisonment must be expressly conferred on the municipality. The nature and form of complaint, evidence, and trial for violation of municipal ordinances are so varied in the several states by constitutions, statutes, and decisions therein as to be regarded as matters of local rather than of general law, and therefore are not susceptible of general statement and treatment. 48. Officers.-A municipal officer is one who holds for a time a permanent municipal position of trust and responsibility, with definite municipal powers, duties, and privileges. A municipal agent is one employed and intrusted by a municipality with discretionary power to represent it in dealings with third persons. A municipal employee is one engaged in the service of the municipality. The office endures; the officer is temporary. His term is usually fixed by law, and for a certain period. The law also defines the scope of his powers, duties, and privileges, and thus endows him with a portion of the governmental authority. An agency is a position of like trust, responsibility, and discretion; but it is distinguished from 16 Judy v. Lashley, 50 W. Va. 628, LEADING ILLUSTRATIVE CASES. 17 Vandine, Petitioner, 6 Pick. 187 (Mass.), LEADING ILLUSTRATIVE CASES. an office by the fact that it is not permanent, but temporary, and was created for a special object. "Employee" is used to describe one occupying a permanent municipal position and performing a continuing service, but not clothed with discretion, and with no power to represent or bind the municipality. 49. Officers classified. The officers of a municipality corresponding to its powers are of two classes: governmental and municipal. City comptrollers, treasurers, and auditor are obviously municipal officers. So, likewise, the firemen and members of the fire department have been declared to be municipal rather than public. The mayor has been held to be, in Missouri, a municipal officer, and in Michigan, a state officer; but it is believed that the former accords with the general current of decisions, as it does with the reason of the law. He is the official head of the municipality, its chief executive officer, the president of the corporation, and specially identified with the local interests centering in the municipality. 50. Eligibility.-Qualifications for holding municipal offices are usually prescribed by the constitution and general statutes of the state, but are often expressed in the charter of the corporation. When qualifications are fixed by the constitution, the legislature cannot impose additional requirements either by charter or general law. Neither can these be fixed by municipal ordinance, nor can statutory qualifications be changed by ordinance. Residence is generally a qualification; but non-residents have been held eligible to municipal office. A property qualification may also be prescribed by law. Choice and duties. The mode of selecting municipal officers is prescribed in the charter or the general law, and varies greatly in different states and in the several municipalities of the same state. The mayor and members of the governing body are elected by the people; but the treasurer, comptroller, marshal, attorney, and members of boards are chosen in some corporations by the people, and in others by the council. All officers, howsoever chosen, occupy a fiduciary relation to the corporation, and must act solely with reference to the welfare of the community. 51. Officers de facto.-An officer de facto is one who, under claim of right or color of title, holds an office de jure, and performs the functions thereof with the acquiescence of the public. A mere usurper or intruder is not an officer de facto. He lacks the color of title and the public reputation and acquiescence essential to a de facto officer. Nor can one be a de facto officer unless he is actually holding an office de jure. Where no office legally exists, the pretended officer is merely an intruder, to whose acts no validity can be attached. 52. Salary. The salary prescribed by law for the official services of a municipal officer is considered the full compensation for all such services rendered by him during his term of office, even though his duties be increased by emergency or by law during the term. The compensation of public officers is under the control of the legislature, by which it may be increased or diminished. Likewise the duties of the office may be made more or less onerous by legislation, or may be increased by emergency arising during the term. The officer accepts the office in view of all these possible conditions, and impliedly undertakes to render whatever service may be required, either by law or by emergency, during his official term, for such compensation as the legislature has provided or may provide during the term. The incumbent holds over whenever there is a failure to elect his successor, unless such failure is due to his own official negligence, in which case he is forbidden to profit by his own wrong. 53. Title to office. The title to an office cannot be tried or determined in a collateral proceeding, but only by direct contest. This rule applies only to officers de facto, and will not prevent a party from showing that an alleged or pretended official action was taken by a mere usurper or intruder, for in such case the act is void. Resignation. At common law, both tender and acceptance were essential to effect the resignation of municipal officers; but this rule, though recognized still in some localities, is not generally regarded as the law in America. The doctrine is still recognized in Virginia, North Carolina, Tennessee, Kansas, and perhaps some other states; but the contrary has been expressly ruled in Iowa, Ohio, Nebraska, California, and other states, and is more consonant with American habits of thought. However, it has been held by the federal courts and the courts of Texas and Illinois that, when the law provides that an incumbent shall hold office until his successor is elected and qualified, he is not relieved from the duties of his office even by the acceptance of his resignation, but he must await the qualification of his successor to the office. 54. Judicial control.—Municipal officers are subject to judicial control by mandamus, injunction, or amotion to compel performance of judicial duties, observance of the law, and removal of unworthy officers. The jurisdiction of courts in supervising official action is generally limited to ministerial duties. But where power is given to a board of supervisors to fix water rates, the rate fixed must be reasonable and just, so as not to amount to a practical confiscation of the property of the water company; otherwise the courts will interfere. So, also, if any officer refuses to perform a mandatory duty, its performance will be enforced by mandamus, for contempt of which the officer may be punished. Nor can he escape this penalty by resignation after service of the process. So, also, officers may be enjoined from illegal acts threatened under color of their official position. 55. Removal.-Generally, the power of removal is an incident of the power of appointment; and, where an officer holds during the will and pleasure of the appointing power, that power is also the removing power, and is sole judge of the propriety of removal. The legislature may authorize the removal of appointive officers at the will of the appointing power, but an elective officer can be removed from office only by due process of law. The power of removal includes the power of suspension pending trial. This power may be conferred either upon the mayor or the governor of the state; but in case of conviction of crime which disqualifies from holding |