use of public moneys for private purposes.539 This is true even where, in some cases, the expense was incurred by the officer in the defense of actions brought against him on account of official services performed by him.540 § 698. Accounts of public officers. Public officials are charged with the care of public funds or of public property and the obvious duty rests upon them to account. for these from time to time and upon the termination of their official service. Officers disbursing public moneys especially are, or should be, required to keep accounts in detail of their receipts and disbursements; 541 these accounts are generally examined and audited under statutory provisions by boards of audit for the purpose of determining their accuracy.542 The manner of this examination, audit and settlement is controlled by statute,543 and is regarded as a discretionary duty or act which in the absence of 539 Frost v. Inhabitants of Belmont, 88 Mass. (6 Allen) 152. Expenses incurred by individuals in procuring the passage of the town charter cannot be recovered. People v. Bingham Tp. Board, 32 Mich. 492; Hooper v. Ely, 46 Mo. 505. 540 Spaulding v. City of Jefferson, 27 La. Ann. 159; Gove v. Epping, 41 N. H. 539; Merrill v. Town of Plainfield, 45 N. H. 126. But see Fuller v. Inhabitants of Groton, 77 Mass. (11 Gray) 340, and Lawrence v. McAlvin, 109 Mass. 311. 541 Perry v. Otay Irr. Dist., 127 Cal. 565, 60 Pac. 40; Town of Chatham v. Niles, 36 Conn. 403; Dreyer v. People, 176 Ill. 590, 52 N. E. 372; Miller v. State, 106 Ind. 415; City of Muskegon V. Soderberg, 111 Mich. 559, 69 N. W. 1116; Cole County v. Dallmeyer, 101 Mo. 57, 13 S. W. 687; State v. King, 136 Mo. 309, 36 S. W. 681, 38 S. W. 80; Clark County v. Hayman, 142 Mo. 430, 44 S. W. 237; Woodward v. State, 58 Neb. 598, 79 N. W. 164; Town of Guilford v. Cooley, 58 N. Y. 116; People v. Barnes, 114 N. Y. 317; State v. Washington County Com'rs, 56 Ohio St. 631, 47 N. E. 565; State v. Town of Brattleboro, 68 Vt. 520, 35 Atl. 472. 542 Pickett v. Harrod, 86 Ky. 485, 5 S. W. 473; Parish School Board v. Packwood, 42 La. Ann. 468, 7 So. 537; People v. Onondaga Tp. Sup'rs, 16 Mich. 254; Clegg v. Wayne County Auditors, 96 Mich. 188, 55 N. W. 621; Owens V. Andrew County, 49 Mo. 372. 543 Jackson v. Dinkins, 46 Ala. 69; Dale County v. Gunter, 46 Ala. 118; Reynolds v. McWilliams, 49 Ala. 552. An officer de facto whose official duty is to audit the accounts of other officials cannot refuse on the ground that he is not one de jure and simply one de facto. English v. Chicot County, 26 Ark. 454; Barnes v. Marion County, 54 Iowa, 482; State v. Kenney, 9 Mont. 223, 23 Pac. 733; Kearney County v. Tuttle, 16 Neb. 34; Springer v. Inhabitants of Logan, 58 N. J. Law, 588, 33 Atl. 952; In re Tinsley, 90 fraud or gross mistake is conclusive.544 The report of an official when questions are raised with respect to its correctness is generally considered as conclusive and the official is estopped to claim facts or conditions other than as so represented or stated.545 § 699. Agents and employes; authority to hire. A public corporation may legally employ in its service, special agents and employes not considered as public officers in the legal sense of the term, the relation being a contract one and the rights and obligations of the parties being measured by the particular contract of employment,546 and in this respect totally different from the relation existing between a public corporation and a pub N. Y. 231; Godshalk v. Northampton County, 71 Pa. 324; Luzerne County v. Whitaker, 100 Pa. 296. 544 United States v. Patrick, 73 Fed. 800, 20 C. C. A. 11; People v. Lattimore, 19 Cal. 365; Springer v. Green, 46 Cal. 73; Harms v. Fitzgerald, 1 Ill. App. 325; District Tp. of Viola v. Bickelhaupt, 99 Iowa, 659, 68 N. W. 914; Parish School Board v. Packwood, 42 La. Ann. 468, 7 So. 537; Union Parish School Board v. Trimble, 33 La. Ann. 1073; State v. Ewing, 116 Mo. 129, 22 S. W. 476; Scott County v. Leftwich, 145 Mo. 26, 46 S. W. 963; State v. Shipman, 125 Mo. 436; Bush v. Johnson County, 48 Neb. 1, 66 N. W. 1023, 32 L. R. A. 223; Godshalk v. Northampton County, 71 Pa. 324; Shartzer V. Washington School Dist., 90 Pa. 192; County of West Moreland v. Fisher, 172 Pa. 317, 33 Atl. 571; Ferry v. King County, 2 Wash. St. 337, 26 Pac. 537; Town of Cady v. Bailey, 95 Wis. 370, 70 N. W. 285. But see Hazelet v. Holt County, 51 Neb. 716, 71 N. W. 717, and Shepard v. Easterling, 61 Neb. 882, 86 N. W. 941. 545 San Juan County Com'rs v. Oliver, 7 Colo. App. 515, 44 Pac. 362; Oeltjen v. Pele, 61 Ill. App. Abb. Corp. Vol. II — 44. 54; State v. Mock, 21 Ind. App. 629, 52 N. E. 998; Montmorency County v. Putnam, 122 Mich. 581, 81 N. W. 573. Under Comp. Laws 1897, § 2479, settlen.ents with the county treasurer are prima facie evidence only of the state of his account and either party is at liberty to show fraud, mistake or omission. Whitney v. State, 53 Neb. 287, 73 N. W. 696. But see Shaver V. Sharp County, 62 Ark. 76, 34 S. W. 261; State v. Ewing, 116 Mo. 129, 22 S. W. 476. 546 White v. City of Alameda, 124 Cal. 95, 56 Pac. 795; Gillett v. Logan County Sup'rs, 67 Ill. 256; Wilt v. Town of Redkey, 29 Ind. App. 199, 64 N. E. 228. Such a contract relation may arise by implication or through ratification of acts done. It is not necessary that the employment be made by formal ordinance, by-law or resolution nor it is even essential that the contract be in writing. Webster County v. Taylor, 19 Iowa, 117; Call v. Hamilton County, 62 Iowa, 448; Henderson County v. Dixon, 23 Ky. L. R. 1204, 63 S. W. 756; State v. Lancaster County Com'rs, 20 Neb. 419; Failing v. City of Syracuse, 4 Misc. 50, 24. N. Y. Supp. 705. Π. Γ. lic officer. The legality of the contract as usual depends upon the authority or power of the parties to enter into it.547 One of these is necessarily a public corporation and its legal right to hire agents and employes is limited by the nature of the corporation and by the fact that it is a public corporation restricted in its legal capacity to undertake commercial or business enterprises or engage in ordinary work.548 In some instances a public corporation may be limited in these directions not only by the general limitation above suggested but also by special constitutional or statutory provisions which restrict its power to engage in particular work.549 The authority of a public corporation to employ an agent, a clerk, or a laborer, therefore, is limited by its general character and also by such special restrictions as those suggested. The discussion relative to the exercise of the express and implied powers of a public corporation is appropriate in this connection.550 The general rule obtains, as will be remembered, that a public corporation possesses but few implied powers and where the question of the legality of the employment arises or may arise, the safer assumption is that the right must be expressly given.551 There certainly is no implied power in a public corporation to employ persons to do work outside of duties germane to public government.552 Not only should the contract of employment be one within the power of the public corporation to make, but it must be made by one authorized to represent the corporation.553 The difference in the char 547 Cramer v. Water Com'rs of New Brunswick, 57 N. J. Law, 478, 31 Atl. 384. 548 Potts v. City of Cape May, 66 N. J. Law, 544, 49 Atl. 584. A municipality has no power to employ an agent to represent it in an advertising or general way as a popular summer resort. 549 Randolph County Com'rs V. Henry County Com'rs, 27 Ind. App. 378, 61 N. E. 612; Potts v. City of Cape May, 66 N. J. Law, 544, 49 Atl. 584. 550 See §§ 108 et seq., ante. 551 City of Ft. Wayne v. Rosenthal, 75 Ind. 156; Copp v. St. Louis County, 34 Mo. 383; People v. Town Auditors of Smithville, 85 Hun, 114, 32 N. Y. Supp. 668.. 552 Potts v. City of Cape May, 66 N. J. Law, 544, 49 Atl. 584. 553 Ventura County v. Clay, 112 Cal. 65, 44 Pac. 488; Roberts v. People, 9 Colo. 458. A county assessor has the legal authority to employ necessary clerks. Town of Madison v. Newsome, 39 Fla. 149, 22 So. 270; Garrigus v. Howard County Com'rs, 157 Ind. 103, 60 N. E. 948; Dickinson v. Jersey City, 68 N. J. Law, 99, 52 Atl. 278. A board of fire commissioners cannot appoint men to office whose terms will begin after a new board will come into office. Walsh v. City of Albany, 32 App. Div. 128, 52 N. Y. Supp. 836. acter of an agency as representing a public corporation and one. acting for a private person, whether natural or artificial, has already been discussed in a previous section.554 Bearing in mind. these general principles, the question of the legality of an employment in a particular instance may easily be determined. §700. Fire department; power to organize. There seems no doubt but that it is a proper exercise of governmental power to guard the lives and property of those within its protection. Under this principle, fire departments within the limits of municipal corporations or elsewhere are organized and managed, supplies are purchased and firemen employed to carry on this particular function.555 A public corporation having a fire department may control the retirement 556 and the employment of firemen and prescribe qualifications or tests, both physical and mental, as necessary for such employment.557 Their pay may be fixed and funds set aside for the benefit of disabled or aged firemen or their families.558 Civil service rules may also be adopted bearing upon and controlling their conduct while employed 559 and providing for their removal or suspension for cause 560 by an 554 See §§ 651, 663, ante. 555 People v. Auburn Fire Com'rs, 27 App. Div. 530, 50 N. Y. Supp. 506. 556 People v. Trustees of Firemans' Pension Fund, 95 Ill. App. 300; People v. Bryant, 28 App. Div. 480, 51 N. Y. Supp. 119; People v. Scannel, 34 Misc. 709, 70 N. Y. Supp. 1042. 557 Higgins v. Cole, 100 Cal. 260, 34 Pac. 678; Williams v. City of Newport, 75 Ky. (12 Bush) 438. The chief of a fire department may be removed through the abolition of the office. Gilbert v. Salt Lake City Police & Fire Com'rs, 11 Utah, 378, 40 Pac. 264. 558 Tobin v. Scannell, 64 App. Div. 375, 72 N. Y. Supp. 184; Peterson v. City of Wilmington, 130 N. C. 76, 40 S. E. 853, 56 L. R. A. 959. Firemen cannot recover for injuries sus tained while in service; the duties performed by a fire department in respect to the extinguishment of fires is a public and governmental one; not private or municipal. Price v. Farley, 22 Ohio Circuit Ct. Rep. 48; Karb v. State, 54 Ohio St. 383, 43 N. E. 920. 559 Lyon v. Newark Fire Com'rs, 53 N. J. Law, 92, 20 Atl. 757; Newark Fire Com'rs v. Lyon, 53 N. J. Law, 632, 23 Atl. 274, reversing 53 N. J. Law, 92, 20 Atl. 757. 560 Norton v. Inhabitants of Brookline, 181 Mass. 360, 63 N. E. 930; People v. Wurster, 89 Hun, 7, 35 N. Y. Supp. 86. A surgeon appointed by a board of fire commissioners to attend members of the department is a fireman within the protection of the statute prohibiting their removal without a charge and trial; a laborer employed by the depart appropriate tribunal 561 after notice and hearing,562 and upon charges made in an appropriate and prescribed manner. 563 Causes for removal or suspension may be established and these may consist of a neglect of duty,504 of conduct unbecoming to their position,565 of disobedience and insubordination or wilful violation of rules and regulations provided generally for the management of such a department.566 Contrary to the usual rule where charges are made against an employe of the fire department resulting in suspension or removal, the burden of proof is upon the party charged with the offense to bring his conduct within the rules ment and a coal passer not considered firemen. In re Delaney, 90 Hun, 515, 35 N. Y. Supp. 964. Lack of appropri ated funds is no cause for the discharge of firemen. People v. New York Fire Com'rs, 43 Hun (N. Y.) 554; People v. Tracy, 35 App. Div. 265, 54 N. Y. Supp. 1070; People v. York, 53 App. Div. 429, 65 N. Y. Supp. 1074. The usual rule that in order to make a removal or discharge effectual, notice must be given and a hearing had does not apply where an office is legally abolished in good faith. People v. Brooklyn Fire Dept. Com'rs, 103 N. Y. 370; People v. Coler, 159 N. Y. 569. In order to take advantage of the privileges afforded by N. Y. Laws, 1892, c. 577, § 1, it must be alleged that the person has served the time required by law in a volunteer fire department or was a member at the time of its disbandment. 561 People v. Coyle, 31 Misc. 827, 64 N. Y. Supp. 894, affirmed 55 App. Div. 223, 66 N. Y. Supp. 827. 562 Duerr v. Newark Fire Com'rs, 55 N. J. Law, 272, 26 Atl. 144; People v. Broklyn Fire Dept. Com'rs, 106 N. Y. 64, 12 N. E. 641; People v. Purroy, 59 Hun, 622, 13 N. Y. Supp. 119. Insufficient notice may be waived by appearance and hearing without objection. People v. Auburn Fire Com'rs, 27 App. Div. 530, 50 N. Y. Supp. 506; People v. Scannell, 27 Misc. 734, 59 N. Y. Supp. 480. An assistant secretary of the fire department is entitled to a notice and a hearing before he can be discharged. People v. Brooklyn Fire Dept. Com'rs, 103 N. Y. 370. 563 People v. New York Fire Com'rs, 72 N. Y. 445, Id., 77 N. Y. 153. 564 O'Neill v. Register, 75 Md. 425, 23 Atl. 960; State v. Register, 59 Md. 283; People v. Ennis, 65 Hun, 621, 19 N. Y. Supp. 946; People v. Sandford, 89 Hun, 605, 35 N. Y. Supp. 29; People v. Wurster, 91 Hun, 233, 36 N. Y. Supp. 160. Absence without leave when caused by sickness does not constitute a neglect of duty. People v. La Grange, 1 App. Div. 338, 37 N. Y. Supp. 297. 565 People v. Coyle, 31 Misc. 593, 64 N. Y. Supp. 894, affirmed 55 App. Div. 223, 66 N. Y. Supp. 827; People v. Scannell, 56 App. Div. 51, 67 N. Y. Supp. 433; State v. Hyman, 22 Ohio Circ. R. 213. 566 Norton V. Inhabitants of Brookline, 181 Mass. 360, 63 N. E. 930. |