City of Tacoma v. Lillis

• Decision Date: 03 October 1892
• Citation: 4 Wash. 797,31 P. 321
• Parties: CITY OF TACOMA v. LILLIS.
• Court: Washington Supreme Court

31 P. 321

4 Wash. 797

CITY OF TACOMA v. LILLIS.

Supreme Court of Washington

October 3, 1892

Appeal from superior court, Pierce county; J. W. ROBINSON, Judge pro tem.

Action by the city of Tacoma against H. M. Lillis to recover money paid to defendant for services as councilman in alleged violation of law. From a judgment for plaintiff, defendant appeals. Reversed.

Crowley & Sullivan and Judson &amp Sharpstein, for appellant.

S C. Milligan, for respondent.

ANDERS C.J.

From the year 1887 to May 12, 1890, appellant was a member of the city council of the city of Tacoma. At the time of his election, in 1887, and for two years thereafter, no fees or salary was attached to the office of councilman, either by statute or ordinance, but, under the power given to the council by the charter of the city "to establish and regulate the fees and compensation of all its officers excepting when otherwise provided," (Laws 1885-86, p 203,) an ordinance was passed on April 7 and approved April 10, 1888, wherein and whereby it was provided that each of the councilmen of the city should receive a salary of $200 per annum, payable quarterly, and that said salary should begin on the second Saturday of May, 1889. Prior to the going into effect of this ordinance, appellant presented to the city council of said city bills for services performed during the year 1887-88 and the year 1888-89, amounting in the aggregate to $344. On January 12, 1890, a claim for $100 was presented for services, and on April 12, 1890, a further bill was presented to the council for $750, for services rendered from May 1, 1889, to March 1, 1890. All of these claims were allowed by the city council, and audited and ordered paid. Warrants were subsequently issued therefor, which were paid by the city treasurer out of the general fund of said city. The aggregate amount of these sums was $1,194. Appellant was also paid, in addition to the above amount, the salary of $200 per annum, after the ordinance above mentioned went into operation. The city, having elected a new council, brought this action to recover from the appellant the said sum of $1,194 so paid to him, basing its right of recovery upon the alleged ground that appellant demanded and received the same without being entitled thereto, and without any authority of law therefor. A general demurrer to the complaint having been overruled, an answer and a reply were filed, and, by consent of the parties, the cause was tried by the court without a jury.

Counsel for both parties to this controversy agree that the city government of the city of Tacoma was authorized by the city charter to fix the compensation of its own members. The case was tried upon that theory, both in this court and in the court below, and that question is, therefore, not before us for consideration. It is claimed, however, by counsel for the respondent, that payment of the salary of a councilman could only be authorized by law, contract, or ordinance; that there was no contract between appellant and the city in this instance; and, consequently, that the several payments made to appellant for services as a member of the council were received without authority of law, and should be refunded. On the other hand, it is contended by the appellant that the city, having the undisputed power, and having paid for the services rendered, is bound by the action of the council, in the absence of fraud or collusion, and that no recovery can be had against him for the money thus received. These contentions raise the first question to be considered. It cannot be doubted that the city council possessed only such powers as were specially conferred upon it by the charter, together with such other powers as were necessary to carry into effect those thus granted. A city's charter is its constitution, and its council can legally do no act not within the limits prescribed thereby. The inhabitants of the city are the incorporators, and the council are its trustees and agents, clothed only with such power to represent and act for the corporation as the charter gives them. If they transcend the authority conferred by the charter, their acts are not binding upon the city. It was the duty of the council to disburse the funds of the city for purposes authorized by law only, and, if they appropriated money to themselves which they had no right to receive, we think the city may recover it back as money had and received for its use.

The question is, then, did the council, in any event, have the right to pay to appellant any part of the money which the city now seeks to recover? Respondent admits that appellant performed services as one of its councilmen, and also admits, and alleges in its complaint, in substance, that the city, through its council, was authorized by the charter to fix and regulate his compensation, but insists, in effect, that because the city paid what it was authorized to pay, but did it without the sanction of an ordinance, it should now be allowed to recover it back, regardless of whether it was paid in good or bad faith. We think the position of respondent is not tenable in so far as the $344 is concerned. If the city had legal authority to compensate appellant for his official services during the time preceding the going into effect of the ordinance establishing the salary of councilmen, it cannot, after having done so in pursuance of a vote or resolution, turn round, and recover back the amount paid, on the sole ground that it failed to pass an ordinance authorizing the payment. It it was within the province of the council, as admitted by the respondent, to fix the compensation of its members, a mere irregular exercise of the authority vested in it would not render such action, in the absence of fraud or collusion, absolutely void, and of no binding effect upon the city. Ward v. Town of Forest Grove, (Or.) 25 P. 1020; Tyler v. Trustees, etc., 14 Or. 485, 13 P. 329. We are therefore of the opinion that the $144 and the $200 items cannot be recovered by the respondent, even if paid, as claimed by respondent, for services falling strictly within the scope of appellant's duties as councilman. Nor do we think the authorities cited by counsel for respondent militate against this conclusion. See 1 Dill. Mun. Corp. (4th Ed.) § 230; Sikes v. Hatfield, 13 Gray, 347; Farnsworth v. Melrose, 122 Mass. 268; Albright v. County of Bedford, 106 Pa. St. 582; Garvie v. City of Hartford, 54 Conn. 440, 7 A. 723. In the section above cited from Judge Dillon's valuable work, and which is sustained by the authorities cited, that learned author says: "There is no such implied obligation on the part of municipal corporations, and no such relation between them and officers which they are required by law to elect, as will oblige them to make compensation to such officers unless the right to it is expressly given by law, ordinance, or by contract. Officers of a municipal corporation are deemed to have accepted their office with knowledge of, and with reference to, the provisions of the charter or incorporating statute relating to the services which they may be called upon to render, and the compensation provided therefor. Aside from this, or some proper by-law, there is no implied assumpsit on the part of a corporation with respect to the services of its officers. In the absence of express contract, these determine and regulate the right of recovery, and the amount." It is undoubtedly true that there is no such implied obligation on the part of municipal corporations as will oblige them to make compensation to their officers, unless the right to it is expressly given by law, ordinance, or contract; but it by no means follows that, it such a corporation has a right to pay its officers a salary, and does pay them, without violating any law, it can or ought to recover back the money simply for the reason that it was not obliged to make the payment in the first instance; and no authority has been cited by respondent to sustain such a proposition. The cases cited by respondent are either to the effect that a public officer cannot recover compensation not allowed by law, or that an illegal payment may be enjoined.

The remaining portion of the sum sought to be recovered, viz $850, was paid to appellant at different times after the ordinance of April 10, 1888, went into operation, and it now becomes necessary to determine the effect of that ordinance upon the power of the council to compensate its members. It may be stated as a general legal proposition that valid ordinances have the force of laws, and are as binding upon the inhabitants of a municipality as are the statutes of the state upon its citizens generally. 1 Dill. Mun. Corp. (4th Ed.) § 308; Milne v. Davidson, 5 Mart. (N. S.) 409. When the city council passed that ordinance they...