dissenting.
The City Charter of Detroit requires that the Common 'Council should appoint a Marshal in each year. It also provides that the City Marshal shall hold -his office for two years. Here is an evident discrepancy in the law. Which provision shall prevail? Clearly to my mind that imposing a duty. A person who takes office under a fixed salary does not take it under contract, but by appointment. The salary may be increased or diminished during his term of office, and he, in the latter case, can have no action upon contract for such a diminution.
In the present case the appointment was for one year. The understanding then, of both the Common Council and’ Stadler was, that he should hold but one year. Let then each abide by such understanding.
Again, ' at the expiration of the year a successor toStadler was appointed. This was a removal without previous action by the Common Council. — (See 22 Illinois, 554, and 2 Hill, 93.) The very inequity of this demand, and the mischievous results whiph would follow' a contrary decision, are considerations which impel me to hold that the provision imposing a duty upon the Common Council has superior force to that fixing the tenure» of an office — which is, after all, within the power of such Council, and which the Council have undertaken, and I 'think successfully, to conclude by the appointment of a-successor.
I think the judgment should be affirmed.