Chinn v. City of Biloxi
| Decision Date | 26 September 1938 |
| Docket Number | 33298 |
| Citation | 183 Miss. 27,183 So. 375 |
| Court | Mississippi Supreme Court |
| Parties | CHINN et al. v. CITY OF BILOXI |
1. MUNICIPAL CORPORATIONS.
A clerk in the tax collector's office of the city of Biloxi was not entitled to compensation for extra services rendered pursuant to an alleged oral agreement between the mayor and a councilman that either of them might employ additional help in their respective departments, in absence of a contract for such extra services entered on the minutes or showing that payments were approved and allowed by an order of the city council.
2. MUNICIPAL CORPORATIONS.
An ordinance, in its ordinary sense, must be published and thereafter enrolled in the ordinance book, to be effective.
3. MUNICIPAL CORPORATIONS.
Under statute providing that the mayor and commissioners of a municipality may reduce their salaries by an "ordinance" without an election, an "order" entered on minutes of city council reducing compensation of mayor and councilman was sufficient "ordinance" within statute and, when followed by acceptance of warrants for reduced amount, was sufficient to effectuate a reduction of salaries.
4. MUNICIPAL CORPORATIONS.
Mayor and councilman who paid themselves salaries in unreduced amounts after an order, entered on the minutes of the city council, reducing compensation of mayor and councilmen followed by acceptance of warrants for reduced amounts, had effectuated a reduction in salaries, became liable to the city for the excess received by them over that fixed by the order (Laws 1932, chapter 224).
5. MUNICIPAL CORPORATIONS.
In suit by city against mayor, a councilman, and clerk in office of the councilman as tax collector, to recover money received by defendants on warrants signed by mayor for amounts allegedly in excess of that to which defendants were entitled, and against surety on the mayor's official bond, where the mayor and the surety were jointly and severally liable together with the councilman and clerk for the illegal payments made to them, city was not required to join the sureties on the official bonds of the councilman and clerk as parties defendant.
HON. D M. RUSSELL, Chancellor.
APPEAL from the chancery court of Harrison county HON. D. M RUSSELL, Chancellor.
Suit by the City of Biloxi against R. Hart Chinn and others to recover certain sums of money allegedly received by defendants on warrants illegally issued. Decree overruling a plea of nonjoinder and striking the several answers of the defendants, and the defendants appeal. Affirmed and remanded.
Affirmed and remanded.
Dory & Dory, of Biloxi, for appellants, M. L. Michel and Laura V. Lawrence.
In 1931, when the first reduction in salary was made, the appellants were governed by Section 2634 of the Mississippi Code of 1930, which provided that salaries of said Mayor and Commissioners could not be reduced during their term of office, and as held by our Supreme Court in the case of Lewis v. Jane, 129 Miss. 475, any reduction would be null and void. While the court was not called upon to decide the identical point, in the Lewis v. Jane case, Justice ETHRIDGE held such salary could not be changed.
22 R. C. L. 538, sec. 235; Bodenhofer v. Hogan, 142 Ia. 321, 120 N.W. 659, 134 Am. St. Rep. 418, 19 Ann. Cas. 1073.
In Sec. 692, at page 1643 of Abbott's work on Municipal Corporations, under "Change of Compensation During Term," it is said: "The rule holding in respect to a change in compensation, it follows that when the official or employee takes for a time the reduced compensation this does not estop him from claiming the residue."
Purdy v. City of Independence, 75 Iowa 356, 39 N.W. 641; Bowe v. City of St. Paul, 70 Minn. 341, 73 N.W. 184; Kohn v. State, 93 N.Y. 291; Montagues, etc. v. Massay, 76 Va. 307; Neal v. Allen, 76, Va. 437.
Estoppel must be properly plead; this the appellee did not do. It can never apply in a case like the one at bar, and we challenge the appellee to cite any authority contrary to this statement.
The city had a right to employ Miss Lawrence to work extra hours, and she was the proper one to employ. The present city officials have no right to question the acts as to employment of their predecessors in office.
On July 5, 1932, the Mayor and Commissioners of the City of Biloxi passed a resolution by which they attempted to reduce their salaries, from $ 247.50 to $ 200 per month. As we argued on the hearing of our special plea in bar to the action instituted against the appellants, M. L. Michel and Laura V. Lawrence, by the City of Biloxi, it was necessary for the salaries of the Mayor and Commissioners of the City of Biloxi to be reduced "by an ordinance entered on the minutes of the municipality," and such reduction, so as to preclude said Mayor and Commissioners from collecting their full salaries under the 1927 ordinance, could be effected in no other way.
The law is well settled, we believe, that when an enabling act, such as Chapter 224 of the Laws of 1932, specifically and positively provides how a thing is to be done or a result accomplished, it can be done or accomplished in that way, and only that way.
56 N.E. 340; 28 Cyc. 459; Hisey v. Charleston, 62 Mo.App. 381; 76 S.E. 142, 126 F. 29.
We contend that Sec. 1, Par. 2 of Chapter 224 of the Laws of 1932, violates Sec. 90 of the Constitution of Mississippi of 1890, and that it is, therefore, of no legal force and effect, but null and void.
In Couchnower v. U.S. 248 U.S. 405, 38 S.Ct. 137, 63 U. S. (L. Ed.) 328, it is held that the right to decrease salary is not within the power to 'increase and fix' compensation of public officers.
22 R. C. L., sec. 227; Culvertson v. Watkins, 156 Ga. 185, 119 S.E. 319; State v. Carter, 21 P. 477, 28 A.L.R. 1089, 31 A.L.R. 1310; Pitsch v. Continental & Commercial Nat'l Bank of Chicago, 305 Ill. 263, 137 N.E. 198, 25 A.L.R. 164.
In 28 Cyc., pages 458, 459, it is held:
Marguis v. Santa Ana, 103 Cal. 661, 37 P. 650; Chicago v. Wolf, 221 Ill. 130, 77 N.E. 414; Purdy v. Independence, 75 Iowa 356, 39 N.W. 641.
Leathers, Wallace & Graves, of Gulfport, and F. W. Elmer, Jr., of Biloxi, for appellants, St. Paul Mercury Indemnity Company and R. Hart Chinn.
It is the first contention of the appellants, R. Hart Chinn and St. Paul Mercury Indemnity Company, that the lower court committed reversible error in overruling the plea of nonjoinder filed by the St. Paul Mercury Indemnity Company.
It was and is the contention of the St. Paul Mercury Indemnity Company that the United States Fidelity & Guaranty Company was a necessary party defendant in this cause for the reason that any liability which the said M. L. Michel, as principal in the bond, might be under to the City of Biloxi on account of any of the matters and things alleged in the bill of complaint was also a liability of the United States Fidelity & Guaranty Company as surety on the bond; and for the further reason that any liability as might exist in favor of the City of Biloxi, if any, because of the matters and things alleged in the bill of complaint, and because of the alleged illegal payments made by Chinn and Michel, as alleged in the bill, would be a joint as well as a several liability; and that if the City of Biloxi should be entitled to a judgment or decree against the defendant Chinn and his surety, and against the defendant Michel, certainly it should be entitled to a decree and judgment against the United States Fidelity & Guaranty Company, the surety on the official bond of Michel. The rights of the St. Paul Mercury Indemnity Company, indeed the rights of the City of Biloxi itself, could not be fully determined and adjudicated without the presence of the United States Fidelity & Guaranty Company as a party defendant in this cause. It was further alleged on information and belief, in the plea of non-joinder, that Michel, the principal in the bond, was insolvent and could not be made to respond to any judgment or decree of the court that might be rendered against him.
Sec. 108, Griffith's Mississippi Chancery Practice.
We do not understand how it could be contended that the United States Fidelity & Guaranty Company, the surety on the official bond of Michel, would not be directly affected by a decree of the court finding that Michel is indebted to and should pay over to the complainant a sum of money. This surety is not only interested in the controversy between the immediate litigants, but it has an interest in the subject matter which may have been conveniently settled in this suit, if, of course, it should be found that Michel owed the complainant anything. Certainly it could not be argued that the bringing in of the United States Fidelity and Guaranty Company as a party defendant would have involved too many defend, ants or parties to be brought before the court.
Nashville & Decatur R. R. Co. v. Orr, 85. U.S. 475, 21 L.Ed. 810; Williams v. Bankhead, 86 U.S. 572, 22 L.Ed. 184.
The learned Chancellor committed reversible error in sustaining motions of the complainant in the court below to strike the answers of the defendants and to overrule the pleas of the defendants.
Chapter 224 of the Laws of 1932 amended Section 2634 of the Mississippi Code of 1930, which amendment provided, insofar as we are now interested, that "where the...
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