O'Hare v. Town of Park River

• Decision Date: 29 November 1890
• Parties: O'Hare v. Town of Park River.
• Court: North Dakota Supreme Court

1 N.D. 279

47 N.W. 380

O'Hare

v.Town of Park River.

Supreme Court of North Dakota.

Nov. 29, 1890.

Syllabus by the Court.

1. Under the provisions in the general town incorporation law, (section 1043, Comp. Laws,) which provides that “every by-law, ordinance, or regulation, unless in case of emergency, shall be published in a newspaper in said town, if one be printed therein, or posted in five public places, at least ten days before the same shall take effect,” a by-law passed by the town trustees, but never published or posted, in a case where no emergency is alleged or shown, is of no force or effect, even as to such persons as have notice of its passage by the trustees. Either publication or posting is a prerequisite to a binding enactment.

2. When the compensation of a town marshal is fixed at a certain amount per month, the fact that such marshal renders his bills for services and receives his pay for two months, at a rate less than the rate fixed by law, will not preclude such officer from claiming the full pay allowed by law for the subsequent months.

3. But the fact that such officer rendered his bills for two months, even though for an amount less than that prescribed by law, and that such bills were allowed and paid as rendered, and such payment received without objection or protest, amounts to an adjudication of the claim for services for the time covered by the bills rendered, which, in the absence of accident, surprise, or mistake of fact, cannot be reopened.

Appeal from district court, Walsh county; Charles F. Templeton, Judge.H. A. Libby, ( J. M. Cochrane, of counsel,) for appellant. H. W. Phelps, for respondent.

Bartholomew, J.

This action was brought by plaintiff to recover a balance of salary claimed to be due as marshal of the defendant town. The case was tried to the court. The complaint, after alleging the incorporation of the defendant under the general laws of the territory of Dakota, set out a by-law of defendant, known as “By-law No. 9.”duly passed and adopted in February, 1885, and duly published, fixing the salary of the marshal at “the sum of $50 per month, payable at the end of each month,” and alleged that said by-law had never been repealed or amended; alleged that on the 7th day of May, 1888, plaintiff was duly elected marshal of said town, and duly qualified and served as such from said May 7, 1888, to May 6, 1889, and earned the sum of $600 as salary, no part of which has been paid, except the sum of $55; that on May 20, 1889, plaintiff duly presented to the board of trustees his bill of $545, balance due on salary, which said board allowed at the sum of $245 only, and on condition that plaintiff would accept the same in full of all claims against said town, which amount plaintiff refused to accept, and judgment is asked for such balance with interest from May 6, 1889. The answer alleged that in the latter part of 1887 there was a vacancy in the office of marshal of said town, and that plaintiff applied to be appointed to fill such vacancy, and stated that, if so appointed and elected at the next ensuing election, he would perform the duties of said office for $25 per month, and that thereupon the board of trustees of said town appointed plaintiff to fill said vacancy, and on January 21, 1888, and in presence of said marshal, passed an ordinance fixing the salary of marshal at $25 per month; that, during all the time that he served by appointment, and for the first two months that he served under an election, said marshal drew his salary at the rate of $25 per month upon his bills duly rendered and allowed. The court found the allegations of the complaint to be true; and also found that the plaintiff was present at a meeting of defendant's board of trustees on January 21, 1888, at which meeting a resolution was passed purporting to fix the salary of marshal of said town at $25 per month, and that for the months of May and June after his election the marshal drew his salary on his bills rendered, at the rate of $25 per month. Judgment was rendered for plaintiff for $545, and interest from May 20, 1889.

It does not appear in the findings, but is admitted by both parties, that the resolution or by-law reducing the...