Broadwater v. Kendig
| Citation | 261 P. 264,80 Mont. 515 |
| Decision Date | 18 November 1927 |
| Docket Number | 6223. |
| Parties | BROADWATER v. KENDIG, City Treasurer, et al. |
| Court | United States State Supreme Court of Montana |
Appeal from District Court, Hill County; Charles A. Rose, Judge.
Action by A. J. Broadwater against William Kendig, as City Treasurer of the City of Havre, and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded, with directions.
Victor R. Griggs, of Havre, and William T. Pigott, of Helena, for appellants.
C. R Stranahan, of Havre, for respondent.
This action was instituted by the plaintiff, a resident elector and taxpayer of the city of Havre, to enjoin the defendant Kendig, as the city treasurer, from paying to W. C. McKelvey as mayor of the city, a salary in excess of $50 per month and to enjoin the mayor from collecting a greater amount. A motion to dissolve the temporary restraining order by the court issued having been denied, and a general demurrer to the complaint overruled, the defendants answered, and the plaintiff filed a reply thereto. A hearing was had before the court, at the conclusion of which the court made findings of fact and conclusions of law in favor of the plaintiff and by its judgment decreed that the defendants be permanently enjoined as by the plaintiff in his complaint prayed. The appeal is from the judgment.
In substance the complaint alleges that on the first Monday of April, 1924, the defendant W. C. McKelvey was duly elected and qualified as the mayor of the city of Havre, and continued to hold such office for the term of two years thereafter and until he succeeded himself at the election for mayor held on the first Monday of April, 1926; that prior to the last-mentioned date the salary of the mayor was by ordinance duly passed and fixed at the sum of $600 per year; that on the 22d day of April, 1926, while McKelvey was acting as mayor, the city counsel, fraudulently contriving and conniving to unlawfully increase the salary of the mayor, and at a time subsequent to his election, passed an ordinance fixing the mayor's salary at the sum of $165 per month; that ever since the 1st day of May, 1926, being the date of his induction into office for a second term, he has claimed and collected out of the public moneys in the hands of the city treasurer, and the treasurer has paid to him and will continue to pay, such increased salary, unless enjoined.
The answer admits the allegations of the complaint, except that prior to and at the time of the election in April, 1926, the salary of the mayor was, by ordinance duly passed and enacted, fixed at $600 per year; and affirmatively it is averred that on March 18, 1918, Ordinance No. 153, fixing the salary of the mayor at $1,600 per year, was duly passed and enacted and remained in full force and effect on April 22, 1926, when the ordinance in question raising the mayor's salary to $165 per month was passed; that Ordinance No. 191, passed on February 21, 1924, purporting to fix the mayor's salary at $600 per year, was not regularly adopted and is therefore null and void; and that on April 22, 1926, the mayor and city council duly, regularly and lawfully passed Ordinance No. 208, whereby the mayor's salary was fixed at $165 per month, which ordinance is now and ever since its passage has been in full force and effect.
The reply denies the alleged invalidity of the proceedings in the adoption of Ordinance No. 191, fixing the mayor's salary at $600 per year; denies that Ordinance No. 153 was in force and effect, and denies that the mayor and city council duly, regularly, or lawfully passed Ordinance No. 208. Further, it is averred that the mayor did for two years next before the 1st day of May, 1926, accept salary under Ordinance No. 191 at $600 per year and is therefore estopped to claim that Ordinance No. 191 was unlawfully passed or that it is null and void. It is further alleged that neither Ordinance No. 153 nor Ordinance No. 208 were regularly or lawfully passed, and that when the mayor took office for a second term on May 1, 1926, Ordinance No. 208 was void and of no effect. It is then pleaded in closing that the mayor, having claimed and alleged the invalidity of certain ordinances by reason of irregularity in their passage, is now estopped to claim that Ordinance No. 208 is a valid or subsisting ordinance.
At the trial it was admitted that the defendant McKelvey as mayor received and collected as his salary for the office of mayor between May, 1924 and May, 1926, the sum of $600 per year, and that since May, 1926, he had received a salary of $165 per month. Ordinances Nos. 191 and 208 were offered and received in evidence without objection, and the plaintiff then rested his case. Evidence was thereupon introduced by the defendants whereby it was sought to show that Ordinance No. 191 was not regularly passed; and Ordinance No. 153 was offered and received in evidence. The defendants then rested. Additional proof in rebuttal and surrebuttal is not necessary to be considered.
The question involved is whether the mayor is entitled to receive the increased salary provided for by Ordinance No. 208 during his second term of office.
On this appeal we have not been favored with either oral argument or a brief by the respondent in support of his theory as to the basis of the cause of action attempted to be stated in his complaint. Therefore we must look to the pleadings, the proof, and the findings of the court upon which the judgment is predicated. It is obvious to us that the complaint was drafted on the theory that section 31 of article 5 of the state Constitution is applicable, whereby it is provided, "No law shall extend the term of any public officer, or increase or diminish his salary or emolument after his election or appointment;" consequently, that the defendant McKelvey should not be permitted to benefit by the enactment of the ordinance increasing the salary of the mayor, since it was not enacted until after his election to the office for a second term. That such was the trial court's view of the question involved and of the case as presented is reflected by its findings of fact and conclusions of law, to the effect that, since the ordinance providing for an increase in the mayor's salary "was proposed for final passage on the 19th day of April, 1926, and was passed on final reading on the 22d day of April, 1926," and on the later date was by the mayor approved, and since the mayor's second term of office begun on the 3d day of May, 1926, and the ordinance providing for such salary increase did not become effective until May 22, 1926, the defendant McKelvey "could not take or receive a salary under said ordinance * * * during his said term of office"; and that the ordinance providing for an increase of salary for the office of mayor having been passed and become effective during the term of office of McKelvey, "he cannot legally collect any salary under said ordinance."
In our opinion, section 31 of article 5 of the Constitution has no application whatsoever to the mayor or other city officers, and it has been given such interpretation and construction by our Legislature by the enactment of section 5026 of the Revised Codes of 1921, of chapter 42 of the Political Code, which chapter deals exclusively with "officers and elections" in cities and towns. That section explicitly provides that "the salary and compensation of an officer must not be increased or diminished during his term of office."
The language employed in the constitutional provision to the effect that "no law" shall increase or diminish...
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