72 Miss. 844 | Miss. | 1895
delivered the opinion of the court.
A careful consideration of the ordinances of June, 1883, July 7, 1885, July 5, 1887, and March 11, 1889, makes it clear that one person (the town marshal) is to perform all the duties
It is earnestly insisted that the uniform, contemporaneous construction put on these ordinances by the officials of the town, including appellee, has been that the forty dollars were to be in full for all services, and oral proof was offered, subject to objections, abundantly establishing this as a fact; but, without observing as to the competency of this proof, we are satisfied that contemporaneous construction may be properly looked to when the ordinances are doubtful, but not when, as here, they are clear. To allow such effect here would be to repeal the ordinances of 1883 by contemporaneous construction, not to interpret them.
The second contention of counsel for appellant is that there is nothing in the record except the ordinance of March 11, 1889, giving the appellee a salary, as marshal, of $40 per month, and that, as the payment of $40 per month aggregated a sum greater than the eight per cent, commissions for assessing and collecting the taxes, he is overpaid, and the town should have judgment over. Counsel overlooks the ordinance of July 5, 1887, which disposes of this contention.
The third contention of counsel for appellant is manifestly sound. The payment of the three per cent, on the taxes collected was a voluntary payment. Appellee paid the three per cent, not once nor twice, but, as he himself says, every day. He was marshal thirteen months. He was required to pay in, monthly, taxes collected; did pay in, every day; collected his salary of $40 per month every month, and never once presented any claim for commissions as tax assessor and tax col
We do not think there was any error in overruling the motion as to the remittitur.
For the error indicated in not refusing to allow a recovery as to the three per cent, for collecting taxes, the same being-voluntarily paid, the judgment is
Reversed and cause remanded..
Whitfield, J., delivered the following response to the suggestion of error:
It is urged that the court erred in holding that the doctrine of voluntary payment applied, in any event, to the five per cent, commission for assessing. Counsel says: “The court overlooked the fact that the words in the ordinance, ‘ to be retained by him in his settlements, ’ only applies to the three per cent, for collecting, and could not, from the nature of the case, apply
The suggestion that the city only speaks through its ordinances is perfectly sound. The court entertained no doubt as to that. The decision is not rested on the testimony of the aldermen, but on the testimony of Collins himself, and of Cagle. It clearly appears from this testimony that Collins told Cagle that, if he should be elected, he would have to assess the taxes, collect the taxes, and perform all the other duties of marshal, for only $40 per month; that he, Collins, had been acting on this basis, and had, throughout his whole incumbency, so acted. Nor is the principle that contracts by public officers to increase or diminish the compensation fixed for them by law, involved here. It is elementary. The authorities cited by counsel (Greenhood on Public Policy, 350; 72 Iowa, 130; and 58 Ib., 281), announce merely this elementary principle; and 25 Iowa, 487, and 47 Ib., 264, the attorneys’ cases, add nothing to it. The case which is in point, directly here, and which is decisive in support of the view taken by us, in an almost identical case, is Hobbs v. The City of Yonkers, 102 N. Y., 13, to which we call counsel’s special attention. There the law allowed the treasurer, at the time he was appointed by the city council, one peí-cent. on all payments made by him, but the city council, by an amendment of the charter afterward made, was allowed to fix the salary at $2,000 per annum. This it did not do on its minutes, but a written agreement to that effect was made between the city council and the treasurer. He sued for the fees, after getting the $2,000. The court says: ‘‘ When the plaintiff was appointed, he was entitled to a percentage on all moneys received by him, and no authority existed in the common council to change the compensation thus fixed, and the writing signed by the plaintiff was, of itself, inoperative for any such purpose.
The only hesitation we have felt has been as to whether we should not have reversed the judgment generally as to the five per cent, commissions as well as to the three per cent., but we have thought that, as to the three per cent., Collins had his salary in his own hands, was directed to £ £ retain it, ’ ’ and hence the payment was clearly voluntary as to the three percent. ; but the five per cent, commissions were a debt due from the city. They were not to be retained. There was no payment of them by Collins to the city in any proper sense, as of payment of the three per cent., and hence, with hesitation, we held that he could recover the five per cent, commissions. The
We have thus, at unusual length, responded to the suggestion of error. We have done so out of deference to the very great ability of the counsel for appellee. We have wished to satisfy him that we do not set forth at large, always, the authorities supporting our views, desiring to say only what is essential, and that this court ‘' overlooks ’ ’ no fact which a record contains, and fails to carefully read no relevant authority cited by counsel.
The desire of the advocate to win his cause cannot exceed the concern felt by this court to know thoroughly the case made by the record, and to decide just that precise case on that record. ‘
The suggestion is overruled.