Speed v. Common Council , 100 Mich. 92 ( 1894 )

Per Curiam.

This is certiorari to review an order of the circuit court directing the payment of relator’s salary, under Act No. 419, Local Acts of 1893. Pour questions are raised:

1. Is mandamus the proper remedy? This point is ruled by McBride v. City of Grand Rapids, 47 Mich. 236.

2. The answer sets up that the general fund, out of which salaries are usually payable, is overdrawn, in the sum of $6,000. It appears, however, that the amount of uncollected taxes is $21,000, and that the common council has already authorized a loan. There is no doubt of the power of the council to borrow money in anticipation of the collection of the taxes levied. It further appears that the act creating the department went into effect June 1, 1893, after the annual budget had been determined upon, and that the salary fixed by the act was not anticipated in .that budget. The expense, therefore, must be regarded as contingent, and, under the charter, payable out of the contingent fund, which is shown to be amply sufficient.

3. It is contended that the Legislature has no authority to fix the salaries of city officers. The Constitution (section 38, art. 4) provides that the Legislature may confer upon cities such powers of a local, legislative, and administrative character as they may deem proper. The Legislature has not, in this instance, delegated to the municipality the power to fix the salary in question. The point is, we think, ruled by City of Wyandotte v. Drennan, 46 Mich. 478.

4. When 'the act took effect, relator was the then city counselor, under a former appointment. He was reappointed July 15, 1893, and for the months of June and July was paid at the rate fixed by the act. Respondents contend that, for this period, relator was entitled only to the salary as fixed ' under the former appointment. The act is supplemental, and does not disturb existing officers, but, on the contrary, constructs the department with material then on hand; and the provision respecting salary relates as well to the city counselor acting before the act took effect as to the city counselor subsequently appointed.

The order is therefore affirmed, with costs to relator.