Skinner was not a public officer, but a mere servant of the city, employed "to take charge and care" of the police station. Apparently, the contract with him was valid. Since 1897, the board of mayor and aldermen of Manchester have had the care and superintendence of the city's buildings and property. Laws 1846, c. 384, s. 18; P. S., c. 50, s. 5; Laws 1897, c. 198, s. 1. By section 2, chapter 34, of the ordinances of the city, the committee on lands and buildings is empowered to employ such persons as may be necessary to take charge of the city's buildings. This committee of the board of mayor and aldermen made the contract with Skinner. No reason has been pointed out, and none is perceived, why the city was not bound by the contract. No question in respect to it is raised under the statute of frauds. The only question before the court is, whether the legislature intended by the act of 1903 to annul this contract, or merely to *Page 583 transfer to the police commissioners authority to select janitors for the police station after the contract was ended. The act reads as follows: "It shall be the duty of the police commissioners of the city of Manchester to appoint a janitor for the care of the police station, and fix his compensation therefor. All acts and parts of acts inconsistent with this act are hereby repealed, and this act shall take effect upon its passage." Laws 1903, c. 324. It is improbable that the legislature intended to provide for the appointment of a janitor in addition to the one already employed, as there was no necessity for such appointment. Moreover, the employment of two persons, one by each of two agencies acting independently of each other, to have the control and care of a building, both charged with the same duties, would be likely to lead to confusion and conflict and result in ineffective and unsatisfactory service. It is also highly improbable that the legislature attempted to annul or impair the contract made by the city with Skinner. They did not have the power to do this. U.S. Const., art. 1, s. 10. The presumption is that they did not attempt to do it. The only purpose of the act seems to have been to transfer from the city to the police commissioners the function of selecting and employing a janitor for the police station. Undoubtedly, the legislature possessed the power to make such transfer. Gooch v. Exeter, 70 N.H. 413. But there is no reason to suppose that they intended to interfere in any way with the existing contract relating to the subject. On the other hand, there are cogent reasons for believing that the transfer was intended to be subject to the incumbrance of such contract.
No doubt, the city had the privilege of breaking its contract with Skinner, and might do so without justifiable cause. By an exercise of the privilege, it would render itself liable to pay the damages resulting therefrom. If compelled to pay damages, it would merely suffer the natural consequences of its voluntary act. Whether the legislature can exercise the privilege, directly or indirectly, and leave the damages for the city to settle, is quite a different question. They certainly cannot do so without subjecting the city to an exceptional and unreasonable liability, and one that is unequal when compared with the liabilities imposed upon towns generally. If they may do it in this case, they may do it in respect to any contract entered into by a municipal corporation in the performance of its duties to the public. For instance, if a town contracts with a person to build a new highway laid out within its limits, the legislature may step in and wrest the contract from the contractor, and subject the town to liability to pay his damages, by enacting a statute making it the duty of the highway engineers of the state (Laws 1903, c. 133) to build the highway. Such legislation, *Page 584 besides doing great injustice to towns, would set an example of bad faith in the execution of contracts that could not be followed without sacrificing moral principles. If the constitution allows legislation of this kind, it would require definite and unmistakable language in a given case to satisfy the court that the legislature intended to exercise the power. The language of the present act is not sufficiently explicit and definite to warrant the inference of such intention. It makes no reference to existing contracts. It speaks prospectively. "It shall be the duty of the police commissioners . . . to appoint a janitor." When? Not necessarily immediately upon the passage of the act, when there is one already provided, but thereafter, whenever one shall be needed. The express repeal of existing acts does not tend to prove an intent, to interfere with contracts entered into under the acts repealed. The presumption is that the intent was consistent with the prohibition of the constitution against the passage of any law impairing the obligation of contracts. Leavitt v. Lovering, 64 N.H. 607. If the repeal was intended to render the contract void, it would not have that effect. P. S. c. 2, s. 35, Hall v. Hall,64 N.H. 295. In case Skinner should become incapable of performing the service, or should fail to do so, or any circumstance should occur which would justify a revocation of the contract, the power to make the revocation undoubtedly belongs to the police commissioners. Power to select an employee inferentially includes power to remove for cause one already employed. But, as has been shown, the privilege which the city had of breaking the contract without justifiable cause, — from mere caprice, — was not transferred to the commissioners.
According to the record, there was no cause for discharging Skinner, and no cause is stated for terminating the contract with him. Under the circumstances, the commissioners had no authority to terminate the contract, and their notice to him that his services were no longer necessary had no effect. Skinner's contract being in force, the commissioners had no authority to appoint Wiggin, either in his place or as an additional janitor, and as a consequence no authority to accept Wiggin's services on behalf of the city. The city, by its proper officers, refused to recognize him as janitor — refused to accept his services. It never promised, expressly or inferentially, to pay him for his services, and therefore is not liable in this action. *Page 585