58 P. 72 | Or. | 1899
Lead Opinion
after stating the facts, delivered the opinion of the court.
There are several important questions of procedure raised by counsel for the city, but we shall not discuss them, preferring to dispose of the case upon the merits. It is sought to sustain the rulings of the court below on the ground that the resolution of the Board of Fire Commissioners reducing plaintiff’s salary, and his agreement to accept such reduction, were both illegal and void, as against public policy, and, notwithstanding the fact that such agreement has been complied with, and that each month during his term of service the plaintiff voluntarily received and accepted the amount fixed by such resolution and agreement in full payment of all-demands, he still has a valid claim against the city for the difference between his salary as provided in the charter and the one which he stipulated and agreed to accept, and was actually paid. It may be stated at the outset that, where the compensation of a public officer is fixed by law, it cannot be reduced by his superior officer or the person by whom he is employed, and the mere fact that he takes the reduced salary does not prevent him from claiming the residue ; nor is an agreement or promise to accept such reduced salary binding upon him : Mechem, Pub. Off. § 857 ; State v. Mayor, etc. of Nashville, 15 Lea,
Accordingly it was held that the plaintiff, who was employed as fireman in 1880 by the superintendent of the capitol of New York, and continued to serve in that capacity until December, 1881, but had been paid during the summer months only one-half the daily allowance fixed by the appropriation act for “the compensation of the men employed as firemen in the capitol,” was entitled to the balance, and that the attempted reduction of his salary by his superior officer was void, and the decision of the board of auditors rejecting his claim, error : Kelm v. State, 93 N. Y. 291. And again, where the legislature attempted to reduce the salary of a judge, and the act is subsequently declared unconstitutional, an acceptance of the reduced salary without protest or objection during the period of the life of the act of the legislature is not a waiver of his right to the entire salary, nor is he estopped from claiming it: Montague’s Adm’r v. Massey, 76 Va. 399. So, also, in People ex rel. v. Board of Police, 75 N. Y. 38, the relator was appointed police surgeon by the board of police, under a resolution which fixed his salary at $1,500 per annum. He accepted the appointment, and discharged the duties of his office for over two years, drawing the salary as fixed by the resolution. In a subsequent proceeding to compel by mandamus the police commissioners to draw a requisition on the auditor
Within the doctrine of these cases, the resolution reducing the plaintiff’s salary, and his agreement to receive such reduced compensation, were both void, as against public policy, and would have been no defense to a claim by him for his statutory salary. But neither this rule, nor the decisions cited, meet or cover the facts and conditions of the case in hand. Here there was.not only a resolution reducing the plaintiff’s salary, and an agreement by him to accept such reduced salary in lieu of that prescribed by the charter, but such agreement had been fully executed before the commencement of this proceeding, — a feature not to be found in any of the cases referred to, and which, in our opinion, is sufficient to bar recovery. Notwithstanding the fact that the resolution of the board and the plaintiff’s agreement to accept the reduced salary were void, he clearly had a right to release the city from any claim for his salary over and above the stipulated amount; and when at the end of each month he accepted the reduced salary as full compensation for his services for the preceding month, in pursuance of his agreement, it was, in our opinion, substantially the same as if- he had made a donation to the city of the difference between his agreed and the statu
This principle is illustrated by the case of Hobbs v. City of Yonkers, 102 N. Y. 13 (5 N. E. 778), which, although it differs somewhat in its facts from the case at bar, and is perhaps not directly in point, is instructive upon the question now under consideration. In that case the plaintiff agreed with the common council that, if he was appointed city treasurer, he would pay into the treasury all fees over $2,000 per annum, although, under the statute, he was entitled to retain the entire amount. He remained in office three years, paying into the treasury each year all fees collected, except $2,000, and finally settled his accounts on that basis. It was held that, having assented to the arrangement, and it having been fully executed, the amount named in the agreement must be considered as the salary to which the plaintiff was
And, in O’Hara v. Town of Park River, 1 N. D. 279 (47 N. W. 380), it was held that although the fact that a town marshal rendered his bill for services and received
And this, we believe, is the controlling factor in cases of this character. The mere acceptance by an officer of a salary less than that prescribed by the statute will not bar a recovery for the residue, because the law will not imply from that act alone the voluntary assent of the officer to receive such reduced compensation, but will consider it in the nature of a partial payment on the
Rehearing
On Petition eor Rehearing.
delivered the opinion.
The argument of counsel for respondent would be forceful if, as it assumes, there was no agreement by plaintiff to accept the office at the salary specified in the resolution of the Board of Fire Commissioners, except such as may be implied from his conduct. But such an assumption is contrary to the positive allegation of the