Hill v. Rector

• Decision Date: 24 December 1923
• Docket Number: 69
• Parties: HILL v. RECTOR
• Court: Arkansas Supreme Court

256 S.W. 848

161 Ark. 574

HILL v. RECTOR

No. 69

Supreme Court of Arkansas

December 24, 1923

Appeal from Clay Circuit Court, Eastern District; W. W. Bandy Judge; affirmed.

Judgment affirmed.

Costen & Harrison, for appellant.

The defense relied upon by appellee of an agreement on the part of appellant to serve as mayor without remuneration, even if made, was void as against public policy. 68 Ark. 276; 70 Ark 607; Donnelly's Law of Public Contracts, p. 164, § 101; 85 Ark. 106. Payment of a lesser sum than due, although the warrant stated that it was in full payment of services would be void as against public policy. See 47 Ark. 354. The court should have permitted appellant to introduce his witnesses to show that the warrant issued was not in payment for services rendered. It was not necessary that the council make an allowance of salary, as that was done by the ordinance of the city.

Block & Kirsch, for appellee.

There was no record made to show that Hill was ever elected mayor of Rector. Such matters are required to be made matters of record, by C. & M. Digest, §§ 7518- 7680. Parol evidence is not admissible to vary or contradict a municipal council record. 107 Ark. 456; 66 Ark. 535; 35 Ark. 475; 88 Ark. 263; 19 Mass. 397. If in fact he was elected mayor and the record failed to so state, he could have caused the record to be amended if the council had refused to do so on request. 19 R. C. L. 903. He was acting as mayor not by consent of the council but by special agreement with the members thereof, and was nothing more than a de facto mayor, and, as such, not entitled to compensation. 67 Ark. 484. Acceptance of a less amount in settlement of a greater, evidenced by a writing such as the ordinance and warrant in suit, is valid, and precludes any further claim. 75 Ark. 354; 94 Ark. 158; 100 Ark. 251; 114 Ark. 559; 122 Ark. 212.

OPINION

WOOD, J.

This action was instituted by Homer T. Hill against the city of Rector, Arkansas, to recover the sum of $ 305 alleged to be due him for his services as mayor of the city from January 11, 1919, up to and including the 16th day of January, 1920, when he resigned. He alleged that the city of Rector is a city of the second class, and, upon a vacancy occurring in the office of mayor by reason of the removal from the city of J. W. Dollinson, the legally elected mayor, the city council, at its first regular meeting, proceeded to elect Homer T. Hill as mayor, to serve for the unexpired term. After Hill's resignation the city council issued a warrant in his favor for $ 105 which, he claimed, was to reimburse him for money spent in visiting Little Rock and other places in the interest of the city and as compensation for his services in writing certain ordinances.

The appellee, in its answer, denied that Hill was elected mayor of the city of Rector, and denied all other material allegations of the complaint, and, among other things, recited that "by special agreement made with the plaintiff and the members of the city council of defendant, that he would not charge any compensation for his services, he was permitted to act as mayor, and so continued to act until on or about the 16th day of January, 1920, when plaintiff resigned his office as such, and that by reason of said agreement, even if plaintiff had been duly elected mayor of the city, he would not have been entitled to compensation, and defendant pleads said fact in bar of plaintiff's right to recover."

It is agreed by the parties that an ordinance of the city of Rector provides for the payment of a salary to the mayor in the sum of $ 300 per year.

The appellant testified that he was notified of his election as mayor of the city of Rector in 1919, and that he duly qualified as such on the 11th of January, 1919. He served the city as mayor from that date until January 16, 1920, and has not been paid anything on his salary as mayor. The warrant for $ 100, which he exhibited and introduced in evidence, was given him the morning after he resigned. He had cashed the warrant. The warrant was drawn on the treasurer in favor of Hill for $ 100, and contained the following recital: "Given the 12th day of January, 1920, account of in full for services as mayor." It was signed by the recorder. Appellant testified that it was expressly understood by all members of the council present that the above warrant was being issued to him in payment for services rendered by him and expenses incurred in making a trip to Little Rock, Paragould, and Pine Bluff, Arkansas, and for preparing the city ordinance known as "the occupation tax ordinance," and two additional ordinances.

Over the objection of the appellee, appellant was permitted to prove by the recorder of the city that there had been a meeting of the council, and that the recorder made minutes of it on a piece of paper, and thought he had transferred his notes to the minute-book, but, after examining the record, he does not find the record of said notes. At that meeting Hill was elected mayor by a majority of the city council, and acted as mayor from then on for several months. Witness made a record of the vote on the piece of paper on which he kept the record of that meeting. The roll was called and record made of how each man voted, whether aye or nay.

The appellee introduced the records of the minutes of the city of Rector entered January 16, 1920. These minutes showed that there was a meeting of the city council on January 16, 1920, with Homer T. Hill, mayor, being present and the other officers, giving the names of the aldermen, the marshal and the recorder, and, after...