83 Tenn. 697 | Tenn. | 1885
delivered the opinion of the court.
The relator in this case, T. A. Kercheyal, is the present mayor of the city of Nashville. He seeks, by mandamus, to compel the city council to place the amount of compensation, or salary, claimed by him as mayor for 1886, in the budget for the expenses of the city for said year; and also to compel the comptroller of the city treasury to place his name on the
His Honor, the circuit judge, was of opinion that the relator was entitled to the relief sought, and directed peremptory writs of mandamus to be issued' accordingly. From this judgment defendants, or some of them, have prosecuted an appeal in error to this court.
The record indicates that the relator was elected mayor of Nashville on October 8, 1885, and inducted into office on the 13th day of the same month. It. was suggested in argument, by defendant’s counsel,, that the proceedings in the court below were in some respects irregular. But it is sufficient to say, as to-this, that the course pursued in that court was in substantial compliance with the practice approved or suggested, in the case of The State ex rel., v. Board of Inspectors, 6 Lea, 18.
The real grounds of defense relied upon in the demurrer and answer, are these: 1. That the city council, by ordinance adopted in May, 1885, declared that upon the expiration of the term of office of the then mayor, that the mayor of the city should not receive any compensation, that this ordinance is valid, and therefore the present incumbent is not entitled to any compensation. 2. That if this ordinance is for any reason invalid, still the relator is estopped from claiming and receiving any compensation, because in his canvass for said office he declared that if elected he would not claim any compensation for his services as
By the terms of this charter act a city council of ten members is provided for, and the powers of this ■council are largely, if not chiefly, legislative in their character. It also provides for a mayor, wRose duties are chiefly, but not wholly, executive. The act further provides for the creation of a board of public works and affairs of three members, and the duties of this board may be said to be chiefly administrative. So the act fairly divides the city government 'into three departments, and these may be conveniently classified as the legislative, executive and administrative departments, and in the act the rights and duties -of each are specifically pointed out.
The judicial department of the act treats as a subsidiary matter.
The system of city government devised by this charter act seems to have been thoroughly considered, -and there appears to be no good reason why, in practice, it should not prove to be a successful form of government. There are thus three departments, all important and each having its sphere of action, and the checks and balances provided for are well suited to prevent mal-administration. As said, the powers ■of each department are designated, and one is not allowed to encroach upon the domain of the co-ordi
Sections three to eight, both inclusive, relate to-the city council, and the last sentence of section eight of said charter act, is this: “ Counoilmen shall receive no compensation.” Here it is clearly expressed that the-city’s officers in this department of the government were to serve without pay. Whether this provision is a wise one experience alone will demonstrate. But the duties of the council, while important, are not necessarily onerous, after the government is once fully organized and a system of ordinances adopted. A. majority make a quorum for business, and hence, by arrangement, each councilman can be absent from four-tenths of the meetings of the council if he so desires.
The ninth section enumerates many of the duties, of the mayor, and near the end of that section occurs this clause: “ The compensation of the mayor shall be $2,400 per annum, and may be changed by ordinance, but not during his term of office.” The twenty-sixth and twenty-seventh sections of said act provide for the election of the board of public works and affairs.by the city council, their qualification, etc,,, and the twenty-eighth section, is this: “That the members of said board of public works and affairs shall devote their time and attention to the duties of their office, and shall not engage actively in any other business. The compensation of said board of public-works and affairs shall be fixed by the mayor and
The ordinance adopted in May, 1885, by the city council, is in these words: “ After the expiration of the term of the present mayor of the city, the mayor shall serve without compensation.” Is this ordinance valid, or is it ultra vires f The relator insists that the power given the council in the ninth section of the charter act, and quoted, to change the compensation of the mayor does not confer, or imply, the authority to take away all compensation; while the defendants maintain the converse of this proposition.
In determining this question, we must keep in mind, among other things, the fact that this charter act applies only to cities of a population of “thirty-six thousand and upwards.” Millions of property are affected by the administration of the city government. For this reason, the Legislature, it is to be inferred, would be more cautious in its grant of power. A liberal grant of power to a village might not prove disastrous, while the same grant of power to a city might ultimate in financial ruin. This^ act bears evidence that it was drawn with great care. It expressly provides, that councilmen shall receive no ■compensation. If it had intended that the mayor and the board of public works and affairs should receive -no compensation, it certainly would have been so
It is urged, however, by defendants that as the power of the council to change the compensation is expressly given, that it can reach the same end as that sought in said ordinance by reducing the mayor’s salary to a nominal amount, and that this being true demonstrates the correctness of the position that the council has the power to abolish the salary altogether — that it is useless to deny this plenary power, when the council can change the salary from $2,400 to one dollar. In the case of the State at the relation of Hulsey v. Gaines, 2 Lea, 322, Judge McFarland says of an argument of this character: “This is an argument often resorted to, and no argument is more fallacious.” We may enlarge the suggestion. When officials are advised of the fact that their power
As already intimated, an inspection of said act will, show that the duties of the mayor are numerous and important. The office is by no means a sinecure. One of his important duties is to see that all the laws and ordinances of the city are faithfully executed. "Without pay, he cannot be expected to give much attention to the affairs .of the city. The law will not permit- an officer’s salary to be taken for his. debts, because without salary he would not be able to discharge his trusts. Human ingenuity cannot devise a system of laws so perfect but that unscrupulous and designing men can evade and pervert them,.
It is also insisted by the defendants that the relator knew, when he offered himself for the position of mayor, that the salary had been abolished, and is, therefore, estopped. The ordinance abolishing the salary being void, it cannot affect the legal rights of the. relator: Burch v. Baxter, 12 Heis., 603.
There are other reasons that might be adduced why said ordinance is void, but we deem it unnecessary to give them. And, in the view we have taken, it is unnecessary to pass on the question whether said ordinance was unreasonable or oppressive. A grant of charter powers, as a general rule, is strictly construed. A power exercised under a municipal charter must be expressly conferred, or fairly implied from the language or purposes of the act. We have not found or been furnished with any precedent in point, but under the admitted principles of construction, we hold that the ordinance of May, 1885, depriving the mayor of compensation, was beyond the power of the city council and void.
The circuit judge properly Sustained the demurrer to the answer. Even if it be true that the relator, while a candidate, told the electors that he would •serve without compensation if elected, this is not a •contract, nor is he estopped thereby. If a candidate makes such a promise to the voters, it is only binding •in the forum of conscience. It may impose upon :him a moral, but no legal obligation. If an office have a salary attached to it, it is even against public policy to permit such agreements. This has been •determined in numerous cases, some of which have been cited in argument: 36 Wisconsin, 213; 72 Missouri, 13; 53 Iowa, 346; 20 Pick., 428.
Such an agreement by a candidate might be ground on which to remove him from office after election, but is no legal reason to prevent his receiving the salary of the office.
The judgment of the circuit court Avill be affirmed :and the cause remanded to the end that the peremptory writs be issued.