Lawrence Lewis.

American and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] online

. (page 29 of 73)
Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 29 of 73)
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that a resolution of the council empowering an individual to collect the
taxes due the city, at a given rate per cent on the amount collected for his
compensation, may be repealed or modified at any time by the corporation,
on the sole condition that it shall be liable for any compensation earned
under the resolution previous to its repeal or modification; Hiestandz'.
New Orleans, 14 La. Ann. 330 ; and if after his salary is reduced an officer
continues to serve, and receives warrants for monthly payments of his
salary during the term, he waives thereby all objections to the reduction
thereof. Love v. Mayor, etc., Jersey City, 40 N. J. L. 456. But an officer's
submission to a reduction by a superior officer who has no power to make
it, will not stop him from claiming his full pay. Kelm v. State, 65 How.
Pr. (N. Y.) 488.

There are, of course, exceptions to the rule that the legislature or
council may abrogate or alter an office and its fees at will. Thus a board
of auditors, after fixing a salary, cannot change k by parol or without some
further action spread upon their records. People v. Auditors, 41 Mich. 4*
Generally, too, the salary of judges is exempt from legislative reduction.
Commonwealth v. Mann. 5 W. & S. (Pa.), 403. Nor is it to be understood
that city councils have any f)ower to withhold payment from a State officer
whose salary or perquisites are fixed by law, such as the officers of the



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SUPERVISORS OF SENECA CO. V. ALLEN. 273

courts, jurors, or indeed any of the necessary expenses of the administra-
tion of justice. The municipality has no more control over such matters
in the city than commissioners have in their several counties. They can
no more be reduced or denied than can the amounts ascertained in the fee
bill when the city has occasion either to claim or defend in the courts, or
transact other business in the offices. These claims stand on an entirely
different ground. Bladen v, Phila. 60 Pa. St. 464.

Where the charter of the city of St. Louis established the office of
Recorder, and fixed his fees, it was held that the corporation could pass
no by-laws reducing his fees, or deprivmg him of them in any case in
which, by the charter, he would be entitled to receive them. Carr v. City
of St. Louis, 9 Mo. 190. And where a city, organized under a special
charter, abandoned its oi^nization and reorganized under the general
law, its marshal under the old charter was elected under the new, and
continued without interruption to discharge the duties of the office, it was
held, that it was not competent for the city council, after re-incorporation»
to diminish the salary of the officer for the term for which he was first
elected. Cox v. The City of Burlington, 43 Iowa, 612.

And a provision in the charter, by which the corporation is empowered
to fix the compensation of its officers, does not necessarily carry with it
the power to take away fees allowed by the charter. Carr v. City of St.
Louis, 9 Mo. 190.

The office of patrolman is not within the constitutional clause pro-
hibiting^ an increase or decrease of compensation. Shanley v, Brooklyn,
30 Hun, 396. But salaries cannot be reduced by limiting the amount of
appropriations for them. Cashin v, Dunn, 58 Cal. 581. And where the
salary is to be fixed by the board of public works and approved by the
council, the council cannot alone reduce it. Fountain v. Mayor of Jack-
son, 50 Mich. 15.

Extra Compensation for Extra Services.— The New Jersey court
discuss this matter in the following explicit language :

" It is a well settled rule that a person accepting a public office with a
fixed salary is bound to perform the duties of the office for the salary.
He cannot l^;ally claim additional compensation for the discharge of
these duties, even though the salary may be a very inadequate remunera-
tion for the services. Nor does it alter the cdse that by subsequent
statutes or ordinances his duties are increased and not his salary. His
undertaking is to perform the duties of his office whatever they may be
from time to time during his continuance in office for the compensation
stipulated, — ^whether these duties are diminished or increased. When-
ever he considers the compensation inadequate, he is at liberty to resign.
Andrews v. United States, 2 Story's C. C. R. 202 ; People v. Supervisors,
I Hill (N. Y.), 362 ; Bussier v. Pray, 7 Sergt. & Rawle (Pa.), 447 ; Angell &
Ames on Corporation, sec. 317.

** This rule is of importance to the public The successful effort to ob-
tain office is not unfrequently speedily followed by efforts to increase its
emoluments; while the incessant changes which the progressive spirit
of the times is introducing effects almost every year changes in the
9 Cor. Gas.— 18



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274 SUPERVISORS OF SENECA CO. V. ALLEN.

chatacter and additions to the amount of duty in almost every official
station ; and to allow these changes and additions to lay the foundation
of claims for extra services would soon introduce intolerable mischief.
The rule, too, should be very rigidly enforced. The statutes of the l^s-
lature and the ordinances of our municipal corporations seldom prescribe
with much detail and particularly the duties annexed to public offices;
and it requires but little ingenuity to run nice distinctions between what
may and what may not be considered strictly official ; and if these dis-
tinctions are much favored by courts of justice it may lead to great
abuse. . . .

" But the rule, nevertheless, has its limit. It does not follow, from thf
principles laid down, that a public officer is bound to perform all mannsr
of public service without compensation because his office has a salary an-
nexed to it. Nor is he in consequence of holding an office rendered
legally incompetent to the discharge of duties which are clearly extra offi-
cial, outside of the scope of his offilbial duty." Evans v, Trenton, 24
N. J. L. 767. And in this case the rule of distinction above suggested was
applied. The fact were these : An ordinance authorized a twenty-thou-
sand-doliar loan, and it was made the duty of the treasurer of the city to
sign, issue, and redeem the certificates and disburse the money raised.
He prepared these tickets for circulation ; separated, trimmed, and num-
bered them ; issued them ; loaned out the money thus obtained ; redeemed
the tickets when called upon ; re-issued them ; kept them in circulation
for more than two years ; and finally paid them off. These, he alleged,
were extra services, for which he was entitled to the five hundred dollars
which he claimed. " But clearly," said the court, "a large part of these
services were within the scope of his official duty. The issuing, re-issu-
ing, and redeeming these certificates and the loaning of the money were
acts performed as treasurer of the city — acts that nobody but the treasurer
was authorized to perform ; and however totally inadequate the compen-
sation he received by way of salary may have been, and undoubtedly vras,
we have nothing to do with it—" and the jury had nothing to do with it

But to carry this ordinance into effect, a large number of these certifi-
cates or tickets were to be prepared for the action of the treasurer.
Paper was to be purchased, the certificates were to be printed, separated,
trimmed and numbered. The ordinance required the treasurer to sign,
issue, and redeem the certificates, and this pre-supposed that the council
was to procure the certificates and have them prepared for the treasurer's
action. " These," said the court, ** were in no sense official duties— they
were not within the scope of his general duties as treasurer, nor within
the duties prescribed by the special ordinance. They might as well be
performed by one person as another — ^by a private citizen as by a public
officer — and if he could show that he had incurred this expense or per-
formed this duty by request of the proper authority of the city, he should
have been permitted to do so. The claim he thus established would have
been a claim, not for extra services as treasurer of the city or services as
treasurer of a finance committee, but simply for services rendered in his
private, individual capacity." (Evans v. City of Trenton, 24 N. J. L. 767,)



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SUPERVISORS OF SENECA CO. V, ALLEN. 275

The question whether services are extra so as to entitle the officer to
extra compensation must obviously depend largely upon the facts of each
particular case. And no better way can probably be taken to illustrate
the distinction than to state briefly the facts of the cases <i) in which no
extra compensation was allowed, the duty performed being held within
the scope of the official's employment, and (2) those in which an allow-
ance of extra compensation was sustained.

I. Extra Compensation Refused.— A watchman of the city of Bos-
ton, who, while in discharge of his duty as such, discovers a person set-
ting fire to a building, and prosecutes him to conviction, is not entitled
to claim a reward offered by the city government for the detection and
conviction of an incendiary. Pool v. Boston, 5 Cush. 219. See also Gil-
more V, Lewis, 12 Ohio, 281,

A special justice of the city of New York, receiving an annual salary
for his services in that capacity, cannot recover extra compensation for
services performed on Sunday. Palmer v. Mayor, etc., N. Y. 2 Sandf.
(N. Y.) 318.

The chief clerk of the post office department of the United States Gov-
ernment is not entitled to charge a commission for n^^tiating loans to
the use of the government. Brown v, U. S. 9 How. U. S. 487.

Officer not entitled to a commission on a debt collected by levying exe-
cution placed in his hands. Preston v. Bacon, 4 Conn. 472.

No extra pay to supervisor for selling stock owned by county. Andrews
V, Pratt, 44 Cal. 309.

City marshal cannot recover from county for fees earned in adminis-
tering criminal law, although ordinarily such expenses are chai^d to
the county. Christ v, Polk County, 48 Iowa, 302.

The sheriff will not be allowed extra expenses of summoning special
jurors on account of their residing at a distance from each other ; and
court will make a rule absolute for the sheriff to refund money received
on this account, although he has actually expended all the money. Lane
V, Scwell, I Chitty, 175. Vide Pearson v. Maynard, i Taunt. 416; where
the court refused to allow the expenses of sheriff of Yorkshire in sum-
moning knights to appear at Westminster in a real action. The sheriff
cannot maintain an action for expenses in keeping possession of goods,
under fi. fa. at request of plaintiff. Bilke v, Havelock, 3 Campb. 374. 2
M. & S. 294. And see Imp. K. B. 8th ed. 378, as to fees on special jury.

The office of township treasurer having been abolished in Cincinnati,
and the county treasurer of Hamilton county being required to hold all
moneys in his hands belonging to the township of Cincinnati subject to
the orders of the trustees of the township, the county treasurer cannot
charge the fees allowed by law to the township treasurer for the receipt
and disbursement of township funds, in the absence of any law allowing
him to do so. Debolt v. Trustees, 7 Ohio St. 237.

The treasurer of the city of Covington, Kentucky, is not entitled to re-
cover from the city any compensation in addition to his salary by reason
of his being required to receive from the taxpayers the amounts assessed
against them, without any express contract for additional compensation.



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2y6 SUPERVISORS OF SENECA CO. V, ALLEN.

Receiving taxes is a duty pertaining to the office of treasurer. The in-
crease of such duties by extending the time the taxpayers were required
to pay to him, from June 15 to July i, to avoid an additional penalty for
not paying to him, did not imply that the city thereby placed itself under
any legal obligation to increase the treasurer's salary as then fixed by or-
dinance, and the fact that the treasurer continued to receive taxes between
June 15 and July i was a recognition of the right of the council to re-
quire this service at his hands. Covington v, Mayberry, 9 Bush (Ky.), 304.

Especially cannot a public officer receiving a fixed salary for his ser-
vices rightfully claim a compensation beyond his salary for performing a
new duty, or one imposed upon him since the salary was fixed, if he ac-
cepts the office with full knowledge of the resolution requiring the extra
duties to be performed. Palmer z/. Mayor, etc., N. Y. 2 Sandf. (N. Y.) 318.
Or where he has, at the end of every quarter during his term of office, ren-
dered an account against the corporation for the amount of his salary, and
has received his pay, without making any claim for extra compensation.
Palmer v. Mayor, etc., N. Y. 2 Sandf. (N. Y.) 318. A tillerman of a hook
and ladder company is within the constitutional provision prohibiting
extra compensation to be given to officers. Wright v. Hartford, 50 Conn.
546.

And in some instances it is an indictable offence, in public officers, to ex-
act and receive anything more for the performance of their legal duty
than the fees allowed by statute. Gilmore v, Lewis, 12 Ohio, 281.

And generally promises to pay extra compensation are void for want of
consideration. Gilmore v. Lewis, 12 Ohio, 82 ; Evans v, Trenton, 24 N. J.
L. 764 ; Blanchard v. La Salle, 99 111. 278 ; Wendell v, Brooklyn, 29 Barb.
(N. Y.) 204.

" Not only," says Judge Dillon, " has an officer under such circumstances
no legal claim for extra compensation, but a promise to pay him an extra
fee or sum beyond that fixed by law is not binding, though he renders
services and exercises a degree of diligence greater than could legally
have been required of him." i Dill. Mun. Corp. § 234. Citing Heslepv.
Sacramento, 2 Cal. 580 ($10,000 voted to Mayor for meritorious services
held void). Hatch v, Mann, 15 Wend. (N. Y.) 45, reversing s.c, 9 Wend
262 ; approved. Palmer v. Mayor, etc., of New York, 2 Sandf. (N. Y.) 218;
Bartho V, Salter, Latch. 54 ; W. Jones, 65 ; s. c. Lane v, Sewell, i Chitty,
I75» 295; Morris v, Burdett. i Camp. 218; 3 Camp. 374; Callaghan v.
Hallett, I Caines (N. Y.), 104; Preston v. Bacon, 4 Conn. 471 ; Shattuck
V, Woods, I Pick. (Mass.) 175 ; Bussier v. Pray, 7 Serg. & R. (Pa.) 447;
Carroll v, Tyler. 2 Har. & Gill. (Md.) 54; Smith v. Smith, i Bailey (S. C),
70 ; DeBolt v, Cincinnati, 7 Ohio St. 237 ; Pilie v. New Orleans, 19 La.
Ann. 274.

2. ExtRA Compensation Allowed.— A judge of the county courts
who attends at the clerk's office to witness the drawing of juries is en-
titled to compensation for such attendance. People v. Supervisors, 12
Wend. (N. Y.) 257.

Where a county attorney goes beyond the limits of his county to do
business for his county, he may recover reasonable compensation for such



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SUPERVISORS OF SENECA CO. V. ALLEN. 277

services, in addition to his salary. Huffman v. Board of Comrs. Green-
wood Co. 23 Kan. 281. See also Commissioners v. Brewer, 9 Kan. 307.

When a town agent employs an attorney in a suit in favor of or against
the town, the town is legally holden to pay for the attorney's services
without an express vote to that effect ; and the rule is the same if the
town agent, being himself an attorney, renders professional services for
the town. Langdon v. Town of Castleton, 30 Vermont, 285.

And if such a town agent, after his term of ofl&ce has expired, continues
in the management of the suits in which the town is interested, without
any objection from or any express employment by the town or his suc-
cessor, he is entitled to recover of the town for the professional services
rendered after his term of office as town agent has expired. Langdon v.
Town of Castleton, 30 Vermont, 285.

Under ordinances of Lowell, prescribing the duties of city solicitor, he
is entitled to recover against the city for services rendered by virtue of
his office, without special employment, as assistant counsel, in the prep-
aration and trial of a case of flowing land in which the city was one of
numerous complainants, and for services in drafting exceptions and re-
ports of cases ; but not for examining records and making a report of
the business of his office to the city council. Caverly v, Lowell, i Allen
(Mass.), 289.

The town of C. held a public meeting in regard to the proposed altera-
tion, by a railroad company, of the channel of a stream, and passed reso-
lutions directing legal proceedings to be commenced against the company
to prevent such alteration. The plaintiff spoke at the meeting in favor of
the resolutions, and said he would indemnify the town against all expen-
ses arising from such legal proceedings for six cents. It was the general
expectation among the inhabitants of the town that the expenses of such
legal proceedings would be borne by another railroad company, of which
plaintiff was a director, but there was no evidence that this expectation
was based on anything said or done by the plaintiff or any one in behalf
of that company. The officers of the town, in consequence of these reso-
lutions, caused a bill for an injunction against the proposed alteration of
the stream to be brought in the name of the town, in which plaintiff, hav-
ing subsequently been appointed town agent, rendered professional ser-
vices for the town as a solicitor, Held^ that plaintiff was entitled to re-
cover of the town for such services. Langdon v. Town of Castleton, 30
Vermont, 285.

When the fees of a particular officer are mentioned in the statutory fee
bill of 18 14, he can charge no other fees for any service whatever than
those specified in the act. But where the officer is not mentioned in the
act, he may receive fees under other acts of Assembly. Bussier v. Pray, 7
Serg. & R. (Pa.) 447.

A Municipal Council, ia 1850, passed a vote assigning to the clerk of
the peace a fixed salary for that year, " in lieu of all fees." Held (the Jury
Act, 13 & 14 Vic. ch. 55, having been subsequently passed), that this could
not debar him from claiming the fees allowed by the statutes for prepar-



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2/8 SUPERVISORS OF SENECA CO. V. ALLEN.

ing the jury books for the following year. Pringle v. McDonald, lo U. C,
Q. B. 254.

A clerk of the peace cannot charge fees for any service for the remuner-
ation of which no provision is made by statute or otherwise, and the pay-
ment of such fees by a district council in accounts rendered for senriccs
in former years will not prevent their afterwards disputing the charges ia
the accounts of subsequent years. If a clerk of the peace accept a salary
in lieu of all fees, he is not afterwards entitled to any remuneration except
such salary, and an action will not lie against the district council for fees
charged for services performed by a clerk of the peace. Askin v, London
District Council, i U. C. Q. B. 292.

Where the collector of Ipswich claimed a commission on drafts drawn
by him on the collector at Boston, in payment of bounties due to fisher-
men, under the act of 181 3, ch. 34, it was held that there being no pro-
vision by which a commission is allowed thereon, the collector could not
charge a commission, Andrews v. United States, 2 Storey, C. C. 202.

Where the sheriff sells lands under an order of court, he is entitled to
the same commissions as are allowed to the Master and Commissioner
in Equity for similar services ; but he is confined to the rate fixed by the
fee bill : and no usage of the Court of Equity will warrant his making a
higher charge for his services. Smith et aL v. Smith, i Bailey (So. Car.)r
70.

The register of wills of a county where letters testamentary were
granted, acting as the agent of an executor or administrator in the settle-
ment of an estate, is entitled to compensation for his services as agent.
Carroll v, Tyler, 2 Harris & Gill (Md.), 55.

A city controller having been appointed agent of the city to receive
certain bounty bonds, and apply them in the manner prescribed by the
special act authorizing their issue, is entitled to the same compensation as
any other man designated by the council would have. The services being
performed at the request of the city, the law implies a promise to pay what
they are reasonably worth. Detroit v. Redfied, 19 Mich. 376.

All expenditures made by a collector for oflSce rent, clerk hire, fuel, and
stationery, are incidents to his oflSce, and should be allowed as proper
charges against the United States : and if he do not keep and transmit
yearly accounts thereof he does not forfeit his right to be reimbursed for
such expenditures, but only subjects himself to the payment of a penalty.
Andrews v. United States, 2 Storey C. C. 202.

And where the county treasurer occupied for his oflfice a room belong-
ing to plaintiff, and defendant made no other provision for such office than
by suffering hitn to occupy said room, and plaintiff gave notice pending^
the occupation to at least two of the members of the county board that
he should expect and demand compensation for its use, and said occupa-
tion was with the knowledge find consent of \he defendant, it was hild
that the defendant was liable for the value of the use of the room, al-
though there was no express contract between the plaintiff and defendant
that he should receive compensation therefor. Butler v. Board of Neosho
County, 1 5 Kan. 178.



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SUPERVISORS OF SENECA CO. V. ALLEN. 279

Mandamus lies to supervisors of a county to compel them to allow the
account of the clerk of the county for advances made by him in purchas-
ing books for recording deeds and mortgages, etc., and for sending notices
to judges and justices of the peace, of the pedlars who are licensees, with
interest on such advances. Such services being required by law of the
clerks, and no specific compensation provided for them, are properly
chargeable to the county, and ought therefore, to be allowed by the super-
visors and paid according to the act (Sess. 36, ch. 49, s. i, 2 N. R. L. 137,
I Rev. Statutes. 386) for defraying the public and necessary charges in the
respective counties, etc Bright v. Supervisors, 18 Johnson (N. Y.), 242.
Vide Hull v. Supervisors of Oneida, 19 Johns. Rep. 259. Ex-parte Nel-
son, I Cowen's Rep. 417. Supervisor, etc., of Sandlake v. Supervisor, etc.,
of Bulin, 2 Cowen's Rep. 485.

The collector of any port being authorized by the Act of 181 7, ch. 282,
sec. 7, to appoint a deputy, with the approbation of the secretary of the
treasury, a deputy so appointed should receive a reasonable compensa-
tion for his services, although no compensation therefor be fixed. An-
drews V, United States, 2 Storey, C. C. 202,

See also, generally, McBride v. Grand Rapids, 47 Mich. 236. In re
Building Inspectors* Accounts, 12 Phila. 226. Powers v, Oshkosh, 56 Wis.
660.

Who Liable for Compensation. — Obviously that municipality and
no other is liable for the compensation claimed whose officer the claimant
is. It may sometimes be difficult to determine what municipality the
officer serves, and the courts have been called upon to decide the question.
Thus:

Commissioners created by the legislature to sign warrants to be issued
by the city of St. Louis, are State ofl&cers whom the city is under no obli-
gation to pay for such service. Garnierv. St. Louis, 37 Mo. 554.

Since, by the charter of the city of New York (L. 1873, chs. 335 and
755), the police department is made a distinct and separate branch of the
municipal government, and has complete control over the funds annually
appropriated for its support and maintenance, the plaintiff, who had been
employed by such department, could not — at least in the absence of proof
that the appropriations were insufficient to meet its necessary expenses —
recover from the corporation of the city of New York for services ren-
dered upon such employment. Waterman v. Mayor, etc., of New York, 7
Daly (N. Y.). 489.

The services of the clerk of the police court of the city of Detroit are
not •* services rendered for Wayne county" within the meaning of section
i<^ article 10 of the constitution, and, the];^fore, the provision of the stat-
ntc (Laws of 1863, p. 332), empowering the common council to prescribe .
the salary of such clerk, is not in conflict with said section of the consti-
tution, and is valid. People v. Auditor of Wayne Co. 13 Mich. 233.

Fixing Compensation. By Whom, How, When Due, Method of
Payment, Auditing. — ^The board of supervisors of the city and county



Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 29 of 73)