Bodell v. City of Battle Creek, 78.

• Decision Date: 05 March 1935
• Docket Number: No. 78.,78.
• Citation: 270 Mich. 445,259 N.W. 658
• Parties: BODELL v. CITY OF BATTLE CREEK.
• Court: Michigan Supreme Court

270 Mich. 445

259 N.W. 658

BODELL

v.CITY OF BATTLE CREEK.

No. 78.

Supreme Court of Michigan.

March 5, 1935.

Action by Barton W. Bodell against the City of Battle Creek. From an unsatisfactory judgment, plaintiff appeals.

Affirmed.

Appeal from Circuit Court, Calhoun County; Blaine W. Hatch, judge.

Argued before the Entire Bench, except NORTH, J.

John A. Wagner, of Battle Creek, for appellant.

Walter P. North, of Battle Creek, for appellee.

BUTZEL, Justice.

The city of Battle Creek is governed by a commission which has the power and duty to select certain appointive officers, including a city engineer. According to the charter, each of such officers holds office until his successor is appointed and duly qualified. Another provision of the charter states that the city engineer and such other officers as may be designated by the commission shall be appointed for a term of two years and until each of their successors are appointed. On June 7, 1926, Barton W. Bodell, plaintiff, was appointed city engineer at a salary of $300 per month. On December 23, 1929, he was reappointed city engineer for a term of two years from January 1, 1930. On December 27, 1932, nearly a year after the expiration of his two-year term, the city commission adopted a resolution fixing Bodell's salary at the rate of $2,400 per year from and after January 1, 1933, but without stipulating any term. Under the provisions of this resolution, he would hold over until his successor was appointed. Almost immediately after the passing of the resolution, plaintiff complained to the mayor, who was in full sympathy with Bodell, and who had objected to the adoption of the resolution. Plaintiff stated that he would ‘protest’ the action. Plaintiff made a further objection to the city treasurer, who, however, was not a member of the commission.

Notwithstanding these protests, plaintiff received and cashed twice each month a salary check for $100 reciting on its face that it was in payment of his salary for one-half of the month. He filed no formal complaint with the city while his employment continued, and he was paid at the rate of $2,400 per year. In July, 1933, his successor was appointed. In September, 1933, he began the present action to recover a balance alleged to be due him from the city on his salary. He contended that the reduction made in his salary by the commission in December, 1932, was unlawful and contrary to the provisions of the city charter, which provided that the salaries of all elective officers should not be decreased or increased during the term for which they were elected. The trial judge instructed the jury that the commission had no right, as a matter of law, to change or decrease plaintiff's salary from ...