The opinion
DisNey,
dissenting: I dissent except as to the amount of the retainer received by petitioner. The appointment of petitioner was on “a $500 retainer” for the year 1930, and on “a retainer of $500 per annum and fees” for the year 1932. It seems obvious that the “fees” above the retainer were necessarily the subject, in each instance, of agreement. Agreement is contract. It seems to me, therefore, that it is inescapable that as to the compensation received above the retainer the petitioner was an independent contractor. Certainly, as to said fees, his original employment did not comprise a completed contract, the amount of compensation being left undecided. If petitioner and the township had been unable to agree upon the fees, the township, so far as I can see, could have employed someone else to do the work in any particular instance; or, if petitioner had performed the services in any particular instance without previous agreement as to fees, he would have had to rely upon quantum meruit. His original appointment, therefore, offered no means of determining his compensation. Further contract being necessary as to all amounts except the retainer, in my opinion petitioner was an independent contractor.
*906 Furthermore, his duties were not prescribed either by statute or township ordinance, and,, except for the attendance of meetings of the township committee for which he was paid $500, he had no tenure of office, but each case in which he rendered service was a separate matter, subject to agreement as to payment of fees. This situation seems to me squarely to negative the essential elements of the definition of the term “officer.” The very fact that the $500 was received for definite services — attendance of township committee meetings — seems to exclude the remainder of petitioner’s earnings from consideration in the same category with those earned under the continuous tenure of an officer, on a fixed basis, and necessarily to leave them subject to contract in each instance. In Saxe v. Anderson, 19 Fed. Supp. 21, the earnings of a special guardian and referee appointed by the court were refused exemption with the statement: “Here the taxpayer’s tenure and jurisdiction were limited to the case referred to him.” Except as to the attendance at township committee meetings, duly compensated for by a fixed sum and contracted for a fixed period, I must apply the above language to the present petitioner.
Leech agrees with this dissent.