Chandler v. City of Elgin

• Decision Date: 25 June 1929
• Parties: CHANDLER v. CITY OF ELGIN. [*]
• Court: Oregon Supreme Court

278 P. 581

129 Or. 558

CHANDLER v. CITY OF ELGIN. ^[*]

Supreme Court of Oregon

June 25, 1929

Department 2.

Appeal from Circuit Court, Union County; J. W. Knowles, Judge.

Action by George W. Chandler against the City of Elgin. Judgment for defendant, and plaintiff appeals. Affirmed.

This is an action to recover the reasonable value of services against the defendant, a municipal corporation. The complaint alleges the corporate existence of the defendant, the performance of the services at its request, between specified dates, the nature of the services, their reasonable value and amount paid, a demand for the unpaid portion, and asks judgment for the balance.

Except for the corporate existence of the defendant, the entire complaint is denied. Due, however, to certain new matter contained in the answer and admitted in the reply, some of the allegations of the complaint are not put in issue.

The facts leading up to this controversy are substantially as follows: Plaintiff was appointed to the office of city marshal in June, 1919, at a salary of $90 per month. After serving the city in that capacity and at the same salary for about a year, the council in July, 1920, at a regular monthly meeting, by motion, increased his compensation to $115 per month. In the fall of 1920, at the general election plaintiff was selected to fill the office for the next succeeding term. After serving a portion of his term, some friction developed between the members of the council and the plaintiff. In May, 1922, due to this dissatisfaction, the council again by motion changed the salary back to $90 per month. Thereafter plaintiff was paid at that rate until he resigned the office after being defeated for re-election. The pleadings will be further referred to in the opinion.

L Denham, of La Grande, for appellant.

Jesse Crum, of Elgin, for respondent.

BEAN J. (after stating the facts as above).

There are but two questions involved in this appeal, the first one of which may be stated as follows Where the charter of a municipal corporation provides a method of fixing the salaries of its officers, is it possible to fix them in any other manner? If so, is the officer, by accepting the salary so fixed, precluded from questioning the procedure? We will dispose of this question before stating the other.

Section 6 of article 6 of the charter of the city of Elgin provides "The council shall, by ordinance, fix the compensation and fees of all officers entitled thereto under this act."

If the strict construction rule applies to city charters, it will readily be seen that the fixing of salaries in any other manner than by ordinance would be void.

The Iowa court, in speaking of city charters, in the case of City of Des Moines v. Gilchrist et al., 67 Iowa, 210, 25 N.W. 136, 56 Am. Rep. 341, has the following to say: "When a thing is directed to be done through certain means or in a particular manner, there is implied an inhibition upon doing it through other means or in a different manner."

Our own court in the case of Twohy Bros. Co. v. Ochoco Irrigation District et al., 108 Or. 1, 210 P. 873, 216 P. 189, used the following language: "A grant of power, whether private or public in its nature, the exercise of which is restricted and limited to a specified mode, is uniformly construed by the courts to exclude the exercise of the power in any other manner, and to inhibit the municipality from any exercise of the power except as provided by the statute"--citing many authorities.

To the same effect see Cole v. Seaside, 80 Or. 73, 156 P. 569; McQuillin, Municipal Corporations (2d Ed.) § 547.

The defendant insists that, even though the council could not change the compensation by motion, plaintiff by his actions is estopped from questioning the procedure. The record discloses that at the end of each month plaintiff presented his bill for services rendered and specified the amount due him, which amount always conformed to the amount authorized by the council. The record further shows that his bill was always paid, and that at the time of receiving his warrant he always signed a receipt in full payment up to that date. Justice Robert S. Bean, in the case of De Boest v Gambell, 35 Or. 368, 58 P. 72, 353, quoting from the case of O'Hara v. Town of Park River, 1 N. D. 279, 47 N.W. 380, announced the following: "It is true that a party cannot before election to office bind himself by an agreement to receive less salary, if elected, for the performance of the duties of such office than the law fixes. * * * But after the performance of the services, the party may receive less compensation therefor than the legal salary if he choose so to do. And where he renders a bill purporting to cover such services, and the whole thereof, and such bill is allowed and paid as rendered, and payment accepted without objection or protest, it amounts to an adjudication, and, in the absence of surprise, accident or...