105 Ky. 779 | Ky. Ct. App. | 1899
Lead Opinion
delivered the opinion of the coubt.
The above eight appeals involve the same questions, and have been heard together. They all grow out of the same state of facts. By an ordinance approved March 22,1895, it
On March 7,1896, after, it seems, the debt to the city was paid, an ordinance was adopted fixing the salaries of the police after April 1, 1896, as follows: Patrolmen, $60 per month; lieutenants, $65; captain, $75.
Appellees constituted the police force of the city, and -were paid their salaries pursuant to these ordinances until May 27, 1897, when they were discharged. They then filed these suits to recover of the city an alleged balance due them from April 1, 1896, to May 27, 1897, on the ground that the city had no right to cut their compensation down, and that they were entitled to the full pay, as fixed by the
The contention that the ordinance of March 7, 1896, cutting down the salary of the police force, was void, is based on section 161 of the Constitution, which reads as follows: “The compensation of any city, county, town, or municipal officer shall not be changed after his election or appointment or during his term of office, nor shall the term of any such officer be extended beyond the period for which he may have been elected or appointed.”
By section 3138 of the Kentucky Statutes it is provided that the police of the city of Lexington may be removed at pleasure, with or without cause, by the board of police commissioners. They have no term of office.
In Mechem on Public Officers, section 385, it is said: “The word ‘term,’ when used in reference to the tenure of office, means ordinarily a fixed and definite time, and does not apply to appointive offices held at the pleasure of the appointing power.” (Speed v. Crawford, 3 Metc. (Ky.), 213; Kane v. Johnson, 123 Mo., 13, [27 S. W., 399]; Somers v. State, 5 S. D., 321 [58 N. W., 801]).
It is insisted for appellees that although they had no term of office, and were removable at pleasure by the board of police commissioners, they are within the protection of the above section of the Constitution. They contend that the section inhibits any change in the compensation of an officer after his election or appointment, and that it is immaterial whether he has a term of officei or not. On the other hand, it is insisted for the city that the inhibition of the section relates to a change in the compensation of the officer after his election or appointment, and before his term begins, or during his term of office, and: that only officers having terms are referred to.
The same result will be reached if we look at the purpose of the provision. It was designed to protect an officer during his term in the enjoyment of the compensa
In Commonwealth v. Addams, 95 Ky., 590, [26 S. W., 581], this court, quoting section 161 in connection with other provisions of the Constitution, said: “So, by these express provisions of the organic law it was evidently intended to prevent any interference with the salary or compensation of a public officer during his term of office.”
The same language, in effect was used in the case of City of Louisville v. Wilson, 99 Ky., 603, [36 S. W., 944]; but the precise question before us here was not raised in either of these cases. Section 235 of the Constitution, which applies to the salaries of public officers, is expressly limited to those having “terms for which they were elected.” The mischief provided for in both sections is the same. The only reason why the words “after his election or appointment” are inserted in section 161, after the word “changed,” and before the words “during his term of office,” and not in section 235, is that the municipal Legislature meets often, and might change the salary between the election and the beginning of the term of office if section 161 read the same as section 235.
There is another objection to a recovery by appellees. They accepted their salaries as reduced by the ordinance
In Alexander v. Woodford Spring Lake Fishing Co., 90 Ky., 222, [14 S. W., 80], this court said: “When a man with full knowledge, or at least with sufficient notice or means of knowledge, of his rights and all the material circumstances of the case, freely and advisedly does anything which amounts to a recognition of a transaction or acts in a manner inconsistent with a repudiation, . . . the transaction although originally impeachable, beconies unimpeachable in equity.”
In the case of Rau v. City of Little Rock, 34 Ark., 303, this precise question was made, on facts very similar to those before us. The court said: “The salary as fixed by the ordinance, and afterwards' by the resolution, was paid the appellant monthly; and he, with full knowledge of the facts, accepted the same, without, it would seem, any protest or objection, as in full satisfaction and discharge of his demand; and such was the operation and effect of the acceptance. 2 Pars, on Cont., 618; 2 Chit, on Cont., 1101-1127; Brit, on Cont., section 417; King v. New Orleans, 14 La. Ann., 389; Emrie v. Gilbert & Co., Wright (Ohio), 764; Woodburn’s Adm’r v. Stout, 28 Ind., 77; Kirby v. Taylor, 6 Johns. Ch., 242; Milliken v. Brown, 1 Rawle, 391; Riley v. Kershaw, 52 Mo., 224; Palmerton v. Huxford, 4 Denio, 166.
It does not matter whether the ordinance of May 20, 1875, was inoperative upon the appellant’s salary for that
It is, in effect, conceded by appellees’ counsel that they could not recover if the same city authority that fixed their compensation had the power to discharge them at will; but as their salary was fixed by the general council, and they could be discharged at will only by the board of police commissioners, it is insisted that the rule does not apply. But the general council and the board of police commissioners were but agents of the city. If the city could by one agent fix the compensation of appellees, and by another agent turn them' off at will, it was the act in both cases of the city, and the principle of estoppel would apply as fully as if all the powers had been vested in the same agency; for both were acting for the city, and, it must be presumed, would have taken such steps as the good of the city demanded. The liability here is sought to be imposed upon the city, and if appellees, by their conduct with any branch of the city government, abandoned the claim now sued on, they can not maintain this action.
The judgment of the court below in each of the cases is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
Rehearing
RESPONSE TO PETITION FOE REHEARING BY
It is earnestly insisted in the petition for rehearing that, under the statute for the government of cities of the
The cities and towns of the State are divided into six classes, and appropriate laws have been enacted for the government of each class. These statutes contain the scheme of government devised by the Legislature for the urban population of the State, and we think they should be construed as a whole. We have examined them carefully, and do not find any provision relating to cities of other classes making a rule as to official salaries different from that contained in the Constitution. We see no reason why a different rule should be made alone for cities of the second class, and it does not seem to us that the Legislature, in the section quoted, had such an intention in view. There are many persons in the service of these cities who may be strictly city officers. To bring these
The distinguished • counsel also insists that there can be no estoppel in this case, because an estoppel never arises from the acceptance of a part of a debt in payment of the •whole. This is not the doctrine on which the opinion rests. Appellees knew at the end of each month that the city thought it was getting their services at the reduced salaries. They also knew that, if they refused to serve the city at the reduced price, it might exercise its pleasure of discharging them at will. Knowing' this, they accepted the reduced salary to avoid the risk of losing their places, and the city continued them in its service from month to month upon the supposition that they were willing to serve it for the amount paid. ■ To- allow them now to hold the
The city can noi now be placed in statu quo, and appellees, having secured an advantage by the line of conduct which they pursued, can not now be allowed to change it to the prejudice of the city. Petition overruled.