The city council is primarily a legislative and administrative body. Its powers and duties are not essentially judicial. In People v. District Court, 6 Col. 534, a doubt was expressed as to whether, under the constitution, the council could be invested with judicial authority. We there held, in effect, that an investigation of charges preferred against the city solicitor, with a view solely to removal from office, was not a judicial proceeding. We are now inclined to say that while the action in question was not an exercise of ordinary judicial power, it might have been termed quasi judicial. Moreover, since that opinion was written, the limitation upon legislative discretion in regard to the lodgment of judicial power has been modified by constitutional amendment: Mills's Ann. Const., sec. 373. And whatever foundation for doubt may have formerly existed, there is no question but that the city council may now be clothed with at least quasi judicial authority in connection with removals from municipal offices.

But it does not follow that the possession or exercise of judicial power is a prerequisite to all such removals. A broad distinction in this regard is recognized by the authorities between those offices which are of the essence of the corporation and those which are not. For instance, an alderman can only be removed upon notice and investigation, with opportunity to be heard in his defense: Board of Aldermen v. Darrow, 13 Col. 460; 16 Am. St. Rep. 215, and citations; while an officer whose appointment is optional with and made by the council, and who holds at its pleasure, may, as we have seen, be summarily removed without notice or hearing. In the former case, a cause for amotion must exist, and the proceeding, possessing many of the features of judicial action, is properly characterized as quasi judicial; in the latter case, there need be no cause for removal, save the arbitrary will of the council, and the expression of that will is destitute of judicial characteristics.

When, as in the case at bar, the tenure of office is during the pleasure of the council, the subject of amotion is almost entirely within the discretion and control of that body. The motives actuating councilmen in the premises are not ordinarily subject to judicial inquiry. And universally, we believe, in the absence of deception or fraud, courts decline to interfere with the declaration of discretionary municipal pleasure by the council: Hudson v. Denver, 12 Col. 157.

The fact that an ordinance had been adopted by the mu

nicipal authorities of Durango providing for the preferment of charges, and a hearing upon notice preliminary to removals from office, does not alter the result to which the foregoing conclusions would lead. The council were not bound to supply any specific procedure for the removal of police magistrates. The ordinance in question is general, relating to a number of offices, in some of which removals are not discretionary with that body. It reads: "Any officer named above may be removed by a majority of the city council for incompetency or dereliction or violation of duty whenever the council think the interests of said city require such removal; provided, that no officer shall be removed as aforesaid until he shall have notice of such intent of removal, and the charge or charges preferred against him served on him by the city clerk, and an opportunity to exculpate himself before the city council."

We cannot assume that in adopting this ordinance the councilmen intended to curtail their statutory power of removing at pleasure, and limit themselves to removals for the specified causes alone. Besides, it is extremely doubtful if such intent, had it existed, could be thus given any force or effect. For it is not within the power of a municipal corporation, by ordinance or by-law, either to extend or restrict the authority conferred by statute: 1 Dillon on Municipal Corporations, sec. 317.

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It will be observed that the procedure specified in the ordinance above mentioned is limited to removals for "incompetency" or dereliction or violation of duty." We are not apprised by the record that Carter was removed upon either of these grounds. The sole action through which his removal was ultimately accomplished was the following: "Resolved, that it is no longer the pleasure of the city council of the city of Durango that Robert Carter act in the capacity of police magistrate of said city of Durango. Wherefore be it resolved, that the said Robert Carter be, and he is hereby, removed from the said office of police magistrate."

We might, perhaps, with the learned judge before whom this precise question was first raised, declare that the ordinance cannot be permitted, under any circumstances, to control the manner of expressing the "pleasure" vested by statute in the city council. But it is sufficient for us to say that the removal may have been upon grounds not mentioned in the ordinance; and if such were the case, the question of

duty or obligation to follow the prescribed procedure does not fairly arise.

The rule to show cause must be discharged.

OFFICE AND OFFICERS REMOVAL OF MUNICIPAL OFFICER. - The legis lature may confer upon the common council of a city the power to remove an officer without cause, but such power must be expressly conferred: Hallgren v. Campbell, 82 Mich. 255; 21 Am. St. Rep. 557, and note. An officer, before he can be ousted by other than the appointing power, is entitled to a hearing: Board of Comm'rs v. Johnson, 124 Ind. 145; 19 Am. St. Rep. 88, and note. In the absence of constitutional or legislative prohibition, the power of removal is incident to the power of appointment of officers: Newsom v. Cocke, 44 Miss. 352; 7 Am. Rep. 686; State v. Douglass, 26 Wis. 428; 7 Am. Rep. 87, and note. Contra to the doctrine of the leading case, see Board of Aldermen v. Darrow, 13 Col. 460; 16 Am. St. Rep. 215, and extended note.

STATUTE OF FRAUDS - PROMISE OF EXECUTOR OR ADMINISTRATOR. — That portion of the statute of frauds of Connecticut declaring that no civil action shall be maintained upon any agreement whereby to charge any executor or administrator upon a special promise to answer charges out of his own estate, unless such agreement, or some memorandum thereof, be in writing, and signed by the party to be charged therewith or his agent, refers to promises made by an executor or administrator to answer out of his own estate for some liability existing against the dece dent in his lifetime.

STATUTE OF FRAUDS - PROMISE TO ANSWER FOR THE DEBT OF ANOTHER. -If a person, not before liable, agrees to pay the debt of a third person, and as a part of the arrangement the original debtor is discharged from his indebtedness, the agreement is not within the statute of frauds. It is otherwise if the original debtor continues liable. STATUTE OF FRAUDS. — IF THE PERSON UNDERTAKING TO PAY THE DEBT OF ANOTHER RECEIVES PROPERTY OR FUNDS of the debtor for the pur. pose, his promise is, in no proper sense, an undertaking to answer for the debt of another, but an undertaking to apply the property or funds to such payment.

STATUTE OF FRAUDS. —A PROMISE BY AN ADMINISTRATOR TO PAY CERTAIN TAXES if the tax collector would forbear to levy upon chattels on which the estate represented by the administrator had a mortgage, but upon which the taxes were not a lien, is a promise to answer for the debt of another, and therefore within the statute of frauda.

8. Lucas, for the appellant.

J. Halsey and W. A. Briscoe, for the appellee.

SEYMOUR, J. The plaintiff in this case was collector of taxes for the town, city, and central school district of Norwich, and had in his hands warrants for the collection of taxes assessed

in favor of each of them upon property of one Gordon WilCOX. The defendant and her mother were the administrators of the estate of William Wilcox, deceased, and, as such, held a mortgage on certain personal property of Gordon Wilcox, consisting of printing-presses and material in the possession of and used by him in Norwich.

The plaintiff was unable to procure payment of the taxes from Gordon Wilcox, and applied to the defendant for the payment thereof, and threatened to levy upon said mortgaged property unless they were paid. The defendant promised the plaintiff that if he would forbear to levy upon the property she would pay the taxes as soon as the property should be sold under the judgment of foreclosure which she and her mother, as administrators aforesaid, had obtained upon the mortgage. The plaintiff, in consideration of this promise of the defendant, promised to forbear, and did forbear, to levy upon the property, and the same was sold under the judgment of foreclosure, and was bid in for the defendant.

The defendant, after the sale, refused to pay the amount of the taxes to the plaintiff, and they have not been paid.

The suit, it will be observed, is against Mrs. Wilcox personally. No pleadings subsequent to the complaint appear to have been filed, but the finding shows that the defendant denied that she made the promise upon which the action was brought. She also claimed that the promise declared on was within the statute of frauds, and, not being in writing, no recovery could be had upon it, and further, that there was no consideration for the promise, and asked the court so to rule, but the court refused so to do, and rendered judgment for the plaintiff, from which the defendant appeals.

Was the promise, which the court finds was made, within the statute of frauds?

The statute provides that "no civil action shall be maintained upon any agreement whereby to charge any executor or administrator upon a special promise to answer damages out of his own estate, or against any person upon any special promise to answer for the debt, default, or miscarriage of another, . . . . unless such agreement, or some memorandum thereof, be made in writing, and signed by the party to be charged therewith, or his agent": Gen. Stats., sec. 1366.

The first clause has reference to promises by an executor or administrator to answer out of his own estate for a claim against his decedent,- some liability resting upon the execu