Weeks v. Texarkana , 50 Ark. 81 ( 1887 )

SMITH, J.

Weeks sued the town for his salary as recorder from June 1, 1884 to April 28, 1885, at the rate of fifty dollars a month. The answer was in two paragraphs. The first denied the defendant’s indebtedness because the council had on the 27th of May, 1884, abólished the recorder’s-salary and the plaintiff had acquiesced and had continued to-act as recorder, and had from time to time presented to the council his accounts for services, which were duly allowed and paid to him.

In the second paragraph, the defendant pleaded a set-off' of six hundred dollars being one years salary which the plaintiff had received under an ordinance passed April 6th, 1883, after his election on April 3, 1883; which ordinance increased bis compensation during his term of office. Upon demurrer the first plea was adjudged to be good and the second bad. The defendant saved an exception to the action of the court upon the plea of set-off, and the parties went to trial upon the issue formed by the first plea, The plaintiff recovered a verdict and judgment for the amount sued for.

1. Municipal Corporations: Power to compensatt recorder. The statute has not in express terms authorized council of an incorporated town to remunerate the seivices of its recorder. Nevertheless, as onerous duties are devolved upon him, requiring time and labor for their performance, such power may ■ be fairly inferred as essential to the purposes of the incorporation. Otherwise the efficiency of the municipal government might be crippled and the best interests of the town suffer, from the impossibility of procuring a competent man, who would give his services gratuitously. Municipal corporations have power to make by-laws or ordinances, not inconsistent with the laws of the state, for carrying into effect the powers conferred and discharging the duties imposed upon them. Mansf. Dig., see. 764; Dillon on Municipal Corporations, 3d Ed. see. 89.

2. Same: Increasing or diminishing official salaries Repeal of ordinance. An important limitation upon this implied power is contained in Section 926 Mansfield’s Digest: “The emoluments , . . . • -i -i /•> oi no omcer whose election or appointment is provided by this act shall be increased or diminished during the term for which he shall have been elected or appointed.” On the 3rd of April, 1883, when the plaintiff was elected, the services of the recorder were compensated, according to an ordinance then in force, by allowances in the nature of fees. He was entitled to $2.50 for each meeting of council attended by him; for license issued he received the same fees as, county clerks; for keeping and recording minutes, by-laws, ordinances and other instruments required to be recorded and for transcripts to printers, of all instruments required to be printed he was entitled to ten cents for each hundred words. Now the plaintiff must be deemed to have taken office with reference to the existing compensation. Dillon Mun. Corp. sec. 230; Baker v. City of Utica, 19 N. Y. 326.

3. Same Recovery of salary wrongfully paid. Consequently the ordinance of April 6, 1883, which fixed the recorder’s salary at fifty dollars a month was inoperative until the end of the term for which the plaintiff had been elected. But the court below seems to have considered that fhe town having-voluntarily paid Week’s this salary, under no misapprehension of facts, could not recover it back. However true this may be as a general proposition, it ought not to be extended to cases where the officer so wrongfully receiving payment was a member of the council or board which ordered such payment. This would enable every municipal body to evade the salutary restraints imposed by the statute. They might vote themselves extravagant salaries after their induction into office and when they had Once received the money, might set the municipality at defiance. Weeks was a member of the council. Mansf. Dig. 792-3, 774.

But when, at the election in April, 1884, Weeks was chosen for another term, he then became entitled to the salary provided by the ordinance of April 6, 1883. And the repeal of that ordinance on the 27th of May, 1884, did not affect his right to the salary for the rest of his term.

The judgment is reversed and the cause remanded with directions to sustain the demurrer to the first paragraph and to overrule the demurrer to the second paragraph.