Galbreath v. City of Moberly

• Decision Date: 31 October 1883
• Citation: 80 Mo. 484
• Parties: GALBREATH, Appellant, v. THE CITY OF MOBERLY.
• Court: Missouri Supreme Court

80 Mo. 484

GALBREATH, Appellant,

v.THE CITY OF MOBERLY.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Moberly Court of Common Pleas.--HON. G. H. BURCKHARTT, Judge.

AFFIRMED.

Hollis & Wiley for appellant.

A municipal corporation cannot, by simple order or resolution, placed upon the minute book of the clerk, do what its charter expressly says must be done by ordinance. 1 Dillon Munic. Corp., p. 173, § 55; Ib., 362, § 246; Ib., 364, § 249; Saxton v. Beach, 50 Mo. 488; Kiley v. Oppenheimer, 55 Mo. 374; Leach v. Cargill, 60 Mo. 316. The defendant could fix the salary of plaintiff by ordinance only. The doctrine of estoppel cannot be applied to plaintiff when he acted in ignorance of his rights, and by the inducement and negligent or wrongful acts of defendant.

Wm. B. Sanford for respondent.

The plaintiff was bound to know what his salary as marshal was. Boucher v. City of Moberly, 74 Mo. 116. He was estopped from asserting this claim. “A settled account is prima facie correct, and will not be disturbed, except for fraud or mistake in the settlement.” Kennedy v. Goodman, 15 N. W. Rep. 834; Kronenberger v. Bing, 56 Mo. 122.

MARTIN, C.

This was an action for $578, claimed to be due to plaintiff on account of salary as marshal of the city of Moberly.

The plaintiff alleges in his petition that according to an ordinance of the city, approved July 5th, 1875, the salary of the city marshal was fixed at the sum of $75 per month; the he was elected to the office in August, 1877, and was twice re-elected, in April, 1878, and in April, 1879; and that he held the office from August 1st, 1877, till April, 1880. He files an exhibit with his petition, showing that he was paid every month during the whole time of his service, at the rate of $60 per month. This suit is for the difference between $60 per month, which he received, and $75 per month, as established in the ordinance.

The defendant, in its answer, admits the original validity of the ordinance and the election of plaintiff as marshal, and his services in that capacity during the time claimed. But it denies that the ordinance was in force while plaintiff was marshal. It alleges that before his election to the office the salary attached to it was reduced to $60 per month by resolution of the city council. The answer then proceeds to plead monthly settlements with plaintiff at the rate of $60 per month, and a final settlement with him at the expiration of his term of office for salary as marshal and for fines collected by him in that capacity. It is alleged that at this final settlement a balance was found due from plaintiff to defendant in the sum of $63, which was subsequently paid by plaintiff, and that at no monthly, annual or final settlement did the plaintiff ever make claim to more than $60 a month.

To this answer the plaintiff filed a replication of general denial.

At the trial of the case, a jury being waived, it appeared in evidence that the resolution reducing the salary before plaintiff became marshal, was passed by the city council. It was contended by plaintiff that this reduction and consequent repeal could be effected only by ordinance, and that the ordinance fixing the salary at $75 a month continued in force during the whole term of his service. The balance of the answer relating to...