69 Ind. 244 | Ind. | 1879
In this action, the appellee sued the appellant in a complaint of two paragraphs. To each of these paragi’aphs the appellant demurred, for the alleged insufficiency of the facts therein to constitute a cause of action, which demurrers Avere overruled by the court, and to these rulings the appellant accepted. The appellant-then moved the court in writing to strike out certain parts of the first paragraph of appellee’s complaint, Avhich motion was overruled, and to this decision the appellant excepted and filed its bill of exceptions. An answer in four paragraphs was then filed by the appellant, of which the first Avas a general denial, the second was a plea of payment, and each of the other trvo paragraphs stated special matter by way of defence. The appellee’s demurrers, for the want of facts, Avere overruled as to the third paragraph, and sustained as to the fourth paragraph of said answer; and to this latter ruling the appellant excepted. To the second and third paragraphs of answer the appellee replied by a general denial.
The issues joined were tried by the court, and a finding was made for the appellee in the sum of $647.49; and the appellant’s motion for a new trial having been overruled, and its exception entered to this ruling, judgment Avas rendered on the finding.
1. In overruling its demurrer to the first paragraph of complaint;
2. In overruling its demurrer to the second paragraph of complaint;
3. In overruling its motion to strike out parts of the complaint;
4. In overruling its motion for a new trial; and,
5. In sustaining the demurrer to the fourth paragraph of its answer.
1. In the first paragraph of his complaint, the appellee alleged, in substance, that at the May election, 1873, he was duly elected city marshal for said City of Brazil, for the term of two years thence next ensuing, and that he duly qualified and entered upon the dischai'ge of his duties $s such officer, and served as such for said term of two years; that during his said official term, as such city marshal, the appellant became and was indebted to the appellee in the sum of one hundred dollars “ for fees in city cases, which were collected and appropriated by the police officer of said city,” with the appellant’s consent, and in the further sum of one hundred and fifty dollars “ for boarding and furnishing meals to the prisoners of said city, and to tramps and vagrants, by order of the mayor and authorities of said city,” and in the further sum of twenty dollars, “ for killing dogs, and hauling and burying the carcasses of dead animals found within said city, by virtue of the authority of the mayor and common council of said city,” and in the further sum of eight hundred dollars, “ balance on salary of said plaintiff, as marshal of said city,” a bill of particulars of which was filed with and made part of said paragraph; that, before the commencement of this suit, the appellee made out, and presented to the common council of said city while in session, an itemized account of said indebtedness, and de
The first alleged error presents for our decision this question: Are the facts stated in the first paragraph of the complaint, of which we have just given a complete summary, sufficient to constitute a cause of action, in favor of the appellee and against the appellant, for the whole or any part of the alleged indebtedness stated therein ? If the facts alleged in regard to any one of the several items charged for in said paragraph are sufficient to show that the appellant is indebted to the appellee on account of such item, then the court did not err in overruling the demurrer to the paragraph, even if all the other items set forth therein were and are improper or illegal charges. In the first paragraph of the complaint, it was not alleged that the appellant was incorporated under any special act, providing for its incorporation; but in such a case, where a city is a party to a suit, it will be presumed, nothing appearing to the contrary, that such city is incorporated under the general law of this State for the incorporation of cities. Lowrey v. The City of Delphi, 55 Ind. 250.
By section 29 of the general law for the incorporation of cities,, approved March 14th, 1867, in force at and during the time the appellee was marshal, as alleged, of the City of Brazil, the duties and powers of such marshal are declared and set forth with much particularity and clearness. 1 R. S. 1876, p. 279. Under the law the compensation of the city marshal, for the discharge of his official duties, is a matter entirely under the conti’ol and within the power of the common council of his city. There is no statutory provision, so far as we are advised, which allows the marshal to tax any fees or costs, or make any charges for services by him rendered in the performance of any of his official duties. In section 51 of the general law for the incorporation of cities, it is provided that “ The common
In so far as the marshal is concerned, of any city incorporated under the general law of this State, the Legislature has made no other provision for his compensation or salary than such as is contained in said section 51. Bearing this in mind, we proceed now to the consideration of the several items sued for by the appellee in the first paragraph of his complaint. In the first of these items, the appellee alleged that the appellant was indebted to him in the sum of $100 “for fees in city cases, which were collected and appropriated by the police officers of said city with the consent of said defendant.” This is all that the appellee has alleged in the first paragraph of his complaint in relation to the first item sued for; and it is certain, we think, that it utterly fails to show that the appellant was indebted to the appellee in the sum of $100, or any other sum, “ for fees in city cases.” As we have already said, the appellee, as marshal, was not entitled under the law to any fees in city cases or any other cases; and if fees had been taxed and collected in his favor, as marshal, he liad no right to the money thus collected, and therefore no indebtedness would accrue to him from the appellant on account of such fees, or on. account of the collection and appropriation thereof by the police officers of the appellant, with its consent.
The second item sued for by the appellee, in said first paragraph of his complaint, was the sum of $150 “ for boarding and furnishing meals to the prisoners of said city, and to tramps and vagabonds, by order of the mayor' and authorities of said city.” In regard to this second item,
If it was any part of the duties of the appellee, as marshal of the City of Brazil, to do and perform the matters and things for which he has charged the appellant in the second item sued for, then it must be presumed that he was fully compensated therefor by his annual salary, as fixed by the common council, under the law; and if, on the other hand, these matters and things were outside of his official duties, as marshal, and were done and performed by him, “ by order of the mayor and authorities of said city,” and upon a contract or an agreement, express or implied, with the appellant, that he should be compensated therefor, without regard or in addition to his said
“ No member of the common council, or other officer of such city, shall, either directly or indirectly be a party to or in manner interested in any contract or agreement with such city for any matter, cause or thing by which any liability or indebtedness is in any way or manner created against such city ; and if any contract should be made in contravention of the foregoing provisions, the same shall be null and void.” 1 R. S. 1876, p. 288.
“ The foregoing provisions,” it seems to us are entirely too plain for misunderstanding or misconstruction. By the plain letter of the statute, if the appellee, when he was the appellant’s marshal, boarded and furnished meals “ to the prisoners of said city, and to tramps and vagabonds, by order of the mayor and authorities of said city,” under a contract or agreement, express or implied, with the appellant, by which any liability or indebtedness was created against the appellant, such contract or agreement was, beyond all doubt, in direct contravention of the statutory provisions above quoted, and was therefore' “null and void.” It follows, therefore, that the facts alleged by the appellee, in relation to the said second item of indebtedness sued for by him in the first paragraph of his complaint, were not sufficient to constitute a cause of action therefor in his favor and against the said appellant.
What we have said in regard' to the second item will apply with equal force to the third item of indebtedness, sued for in said first paragraph of the complaint, namely, twenty dollars “ for killing dogs, and hauling and'burying the carcassés of dead animals found within said city, by virtue of the authority of the mayor and common council of said city.” If the matters charged for in this third
The last item sued for in the first paragraph of the complaint was the sum of $800, “ balance on salary of said plaintiff, as marshal of said city.” In the bill of particulars filed with said paragraph, all that is said about the said last item is contained in the following words and figures, to wit: “ Due me on salary, $716.00.” It seems to us that the facts alleged by the appellee, either in the said first paragraph of his complaint or in his bill of particulars therewith filed, were clearly insufficient to show any cause of action in his favor and against the appellant, for the recovery of the said last item sued for, or any part thereof. We have already seen that, under section 51 of the general law for the incorporation of cities, the salaries of all city officers'iñuát be fixed by ordinance by the common council of the city. In the absence of any averment to the Contrary, it may be assumed that the appellant’s comnyon council, in compliance with their statutory duties, had/by ordinance fixed the salaries of all the appellant’s offices, including its marshal; and, in that event, it is certain /that a copy of such ordinance, or at least of so much thereof as related to the marshal’s salary, ought to have been filed with or set out in the said first paragraph of the appellee’s complaint. The City of Terre Haute v. Lake, 43 Ind. 480. In 1 Dillon Municipal Corporations, sec. 169, it is said: There is no such implied obligation on the part of municipal corpoi’ations, and no such relation between them and officers which they are required by law to elect, as will oblige them to make compensation to such officers, unless
Here lies the difficulty with the first paragraph of appellee’s complaint, in so far as it relates to the balance on his salary. He sues therefor in indebitatus assumpsit, as upon an implied contract, and there was no such contract.
Our conclusion is, that the first paragraph of the complaint did not state facts sufficient, as to any of the items sued for therein, to constitute a cause of action, and that the appellant’s demurrer thereto ought to have been sustained.
In the second paragraph of his complaint, the appellee sued only to recover a balance of $720, alleged to be due him on his salary from the appellant, as its marshal. It was alleged in this paragraph, that, at thcMay election, 1873, the appellee was duly elected marshal of saidmity for the term of two years; that he qualified as such marshal and entered upon the discharge of the duties of the office, and that he served as such marshal for said term of two ye’$rs; that within one month after said election, to wit, on tb.e 5th day of June, 1873, the common council of the appellant,\ by an ordinance then passed, fixed the salaries of the officers of said city, for the year commencing May 6th, 1873 that, by section 6 of said ordinance, it was provided that “ city marshal shall receive the sum of two dollars per day, to be paid out of the city treasury, for the year commencing May 6th, 1873 ; ” that afterward, on the 6th day of November, 1873, the appellant’s common council, by another ordinance then passed, attempted to amend said
Two questions are presented for decision by the alleged error of the court, in overruling the appellant’s demurrer to this second paragraph of appellee’s complaint, namely:
1. Had the appellant’s common council the power to diminish or reduce the salary of the appellee as marshal ?
2. Conceding the power, were the common council limited or restricted in the exercise of such power ?
In section 51 of the general law for the incorporation of cities, under which the appellant was'incorporated, the
What was the legislative intention in making such a change in the law in relation to the salaries of city officers ? It is easy enough to understand why the Legislature should provide that the common council should not be authorized to increase the salaries of city officers. But the action of the law-making power, in repealing the statutory provisions which prohibited the common council from diminishing the salary of a city officer “ during the term of the then incumbent,” can only be explained and understood upon the hypothesis that the Legislature intended thereby to remove all restrictions and limitations ■upon the right and power of the common council to 'diminish and reduce the salary of any city officer, at any time and to any amount, within their discretion. It seems to us that this was the legislative intention and meaning in the enactment of the law now in force, and in the repeal of all prior legislation on the subject now under consideration. It will not do to say, we think, that, although the common council have the right and power, as they certainly have, to diminish and reduce the salaries of city officers, yet they must exercise such right and power “ within one month after the annual election in each year, or not at all. For such a construction would practically defeat the whole scope, purpose and intention of the legislation bearing upon the power of the common council to diminish or reduce the salaries of city officers. Under the statute, the common council are allowed one month to “ fix the salaries of all the officers of such city ; ” and if, within the same month, they should be required to diminish or l’educe the salaries, “ when so fixed,” the result would be that the power to diminish or reduce would exist only in the name.
Looking to the general laws for the incorporation of cities, under which nearly all of the numerous cities of this State have been and are incorporated, and comparing the present with the past general laws for that purpose, with especial reference to the powers conferred, from time to time, upon the common councils of such cities, over the subject of the salaries of city officers, it has seemed to us that the intention of the Legislature, in the enactment of the present law, was to clothe the common councils of such cities with full power over the salaries of city officers, with no restrictions or limitations on the exercise of such power, except such as are specifically mentioned in the statute. We think, therefore, that the appellant’s common council, in the exercise of their discretion, had the power under the law to reduce the salai’y of the appellee, as marshal, in the manner and at the time it was done, as alleged. This view of the question brings us to decide, as we do, that the court erred in overruling the appellant’s demu,rrer to the second paragraph of the appellee’s complaint.
The judgment is reversed, at the appellee’s costs, and the cause is remanded with instructions to sustain the appellant’s demurrers to each of the paragraphs of the complaint, and for further proceedings not inconsistent with this opinion.