Stephens v. City of Old Town , 102 Me. 21 ( 1906 )

Emery, J.

From the first Monday in April, 1904, to January 26, 1905, the plaintiff was de jure, though not de facto, superintendent of streets in the city of Old Town, holding an office created by the charter of the city, and he was willing and prepared to perform the duties of the office, but was prevented from doing so by the city council’s wrongful recognition of another person as superintendent of streets who did perform the duties of the office. The plaintiff now brings this action to recover the salary or emoluments of the office accruing during that time.

The superintendent of streets in Old Town was not, under the city charter, an employee or agent acting under contract with the city and entitled to damages for breach of a contract for employment. He was a public official possessing official powers and charged with public duties and hence, according to the well settled law, cau recover only the salary or emoluments established by law for that office to be paid by the city. The question, therefore, is whether any such salary or emoluments were established for the office of superintendent of streets in Old Town.

The only statute cited is li. S., ch. 23, sec. 72, which provides that the compensation of the road commissioners of towns “shall be such sum as the town shall annually vote therefor, which sum shall in no case be less than one dollar and fifty cents a day for every day of actual service.” Even if this statute includes the superintendent of streets provided for in the charter of the city of Old Town, it does not avail the plaintiff, since it limits the per diem compensation to days of actual service, and the plaintiff did not perform any service.

No such salary was established in terms by the city council. No appropriation was made for it, the compensation to the superintendent of streets being paid from time to time out of the general appropriation for roads and bridges upon bills presented therefor aud allowed by special order of the council. The Street Board, however, a Board charged by the charter with general superintendence of the streets and with the election of the superintendent, assumed as in preceding years to fix the salary at $200 per year and $1.50 per day additional. It is not claimed that the Street Board had any express authority from the legislature or city council to establish such salary, but it did have legislative authority to “make ajl contracts for labor.” This power, however, cannot be stretched to include the power to establish an official salary for a public office.

The plaintiff contends that by allowing and paying for the municipal year 1904-05 and for several years next preceding the bills of the superintendent for salary as thus fixed by the Street Board, the city council impliedly adopted that act of the Board as its own act, and thus, by implication at least, established that salary for the office. This contention must be overruled. The payment of a claim made by an official for a specific sum as his official salary only disposes of that particular claim. It does not oblige the payment of any similar claim afterward made. It does not establish a salary for the office.

The plaintiff also counts upon a quantum meruit, and contends that, even if no stated sum has been established by law for the office, the sum claimed by him is a reasonable sum and what the responsibilities and duties of the office are reasonably worth. As already stated, there was no contractual obligation upon the city to make any compensation, hence there can be no recovei'y upon a quantum meruit. The city’s obligation was only to pay such salary or make such compensation as should be established by law for the office. The government is not obliged to provide any salary or emoluments for the incumbent of any public office. If an office unprovided with compensation is accepted, the incumbent has no legal claim for compensation. The plaintiff’s office does not appear to have been provided by competent authority with any compensation to be paid by the city, hence he cannot recover any for the time named. He has included in his claim, however, an item of three dollars for services actually performed the preceding year, for which the city consents he may have judgment.

Judgment for the plaintiff for three dollars.