Dissenting. — All the learning of the majority opinion about the discharge of appellee is.aside from, and foreign to, any question involved or discussed by either party to this appeal. Neither in its answer nor by its' evidence does the appellant deny or combat the discharge by it of the appellee. On the contrary, its defense is based on the theory that the contract alleged did not bind it. On the trial it was assumed by both parties that appellant had discharged the appellee and placed another in his place; the former asserting it to be within its rights to do so. The insufficiency of the evidence was not raised by appellant in his motion for a new trial, nor is it assigned as error on appeal. It was not a dis*12putecl or contested question on the trial of the cause, nor is the question properly before this court for disposition.
That the city council, as such, was charged with the duty of caring for the streets of appellant, and to that end empowered to engage the services of appellee, cannot well be questioned. He is not by virtue of such employment an “officer or agent” of the city, but a servant or employee. In 28 Cyc. 585, it is said:
“Generally, an officer takes an oath of office, while a mere agent or employee does not. The duties and services of a mere employee are purely ministerial, and he is not clothed with discretion nor with power to represent or bind the corporation. A municipal agent holds a position of trust, responsibility, and discretion. His relation is fiduciary, and he may contract with third persons in the name of the corporation, but he is distinguished from an officer in the fact that his position is not permanent, but temporary, and for a special object, and this distinction is often an important one. ’ ’
There is no pretense or suggestion that there was any fraud or collusion, or that the contract was unfair or unreasonable, or that appellee was an unfit person for the work, or that he was not faithfully performing his part of the contract. His employment to sprinkle and clean the streets did not deprive the incoming council of its rights of superintendence over such work. If he faithfully performed his engagement, the council’s duty to the, public was as well performed through him as it could be through any other person. It is not a case of personal or professional service entitling the council to choose for itself persons to whose professional honesty, skill, and ability are to be delegated or confided important functions of the council. It is merely to drive a sprinkling wagon and clean the garbage from the streets under the supervision of the supervisor of the streets. He had done this for the year ending May 31, 1912. The new council was not to take office until June 13, 1912. The council, regardless of its personnel, had the power to employ someone to do this work of sprinkling its streets and earing for its garbage. I do not think this power was necessarily limited to the 13 unexpired days of their term, so long as they acted in good faith and for the best interests of the city.
*13In Manley v. Scott, 108 Minn. 142, 29 L. R. A. (N. S.) 652, 121 N. W. 628, the following question was answered in the affirmative:
‘ ‘ Has the' hoard of county commissioners the power to make a contract with an employee which extends beyond the expiration of the terms of office of certain members of the board ? ’ ’
The court said: “While there is some apparent conflict in the authorities, it is reasonably clear that the weight of authority is to the effect that the board has such power. ’ ’
After discussing and distinguishing many of the decided eases for and against the proposition, the court concludes with this statement:
“The morgue-keeper is an employee, and not a public officer. His selection and employment for a definite and reasonable term in no manner interferes with the proper discharge of the duties of the board of county commissioners, nor, does it deprive the board of full power and proper control over the things and matters submitted to its' care by the statutes. It is conceded that the person employed by the board on December 31,1908, was and is a suitable person to perform the'duties required to be performed by him. Having the power at that time to employ a morgue-keeper, there is no implied limitation upon that power which restricts the possible term of employment to the time when any member or members of the board shall go out of office. The contract made in this instance was fair and reasonable, and no question of fraud or collusion is even suggested. Such being the facts, we can conceive of no principle of public policy which is violated by the contract in question. The contract being thus valid, the board, after the new members qualified, had no power to revoke or rescind it without cause being shown. "
This case is annotated in L. R. A. 1915E, 581, on the subject of the power of a board to appoint officer or to make a contract for term extending beyond its own term. See, also, note in 29 L. R. A. (N. S.) 652, on the same subject.