Maxwell v. City of Madison
| Decision Date | 04 June 1940 |
| Citation | 292 N.W. 301,235 Wis. 114 |
| Parties | MAXWELL v. CITY OF MADISON. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Dane County; Alvin C. Reis, Judge.
Affirmed so far as it dismisses the complaint; reversed with directions so far as it dismisses the counterclaim.
Action by Frank A. Maxwell, a former city treasurer, against the City of Madison, to recover salary alleged to have been illegally withheld by the City. Counterclaim by the City to recover alleged excessive payments of salary. From a judgment entered April 18, 1939, dismissing both complaint and counterclaim on the merits, both parties appeal. The essential facts are stated in the opinion.James J. McDonald, of Madison (John R. Mills, of Madison, of counsel), for plaintiff.
Doris E. Lehner, Asst. City Atty., of Madison (Harold E. Hanson, City Atty., of Madison, of counsel), for defendant.
The plaintiff was city treasurer of Madison during three successive terms: from (1) April, 1932, to April, 1934; (2) from April, 1934, to April, 1936; and (3) from April, 1936, to April, 1937. The plaintiff claims and demands recovery of specific sums of salary still due and unpaid to him during each of these terms. The city (4) claims overpayments during his second and third terms, and demands judgment for the amount of the overpayments.
(1) The facts involved under this head are that when the plaintiff began his first term his salary had been duly fixed at $3,000 per year. Such was his salary on January 4, 1933, when the common council adopted an ordinance recommended by the board of estimates on submitting to the common council a budget for the ensuing year. The proposed budget recited cooperation of the heads of all city departments, of one of which the plaintiff was the “head”; that the city was faced with the most serious situation ever presented to the board, viz: loss of revenue amounting to $600,000; that partially to overcome this a reduction in “salaries and wages” was made in the budget of $380,000. The board considered that it was “absolutely necessary that all department heads” keep within their budgets, and “adhere to the salary reduction schedule” as recommended by the board. This schedule included $2,400 as the salary of the city treasurer.
On adoption by the council of the ordinance proposed by the board of estimates, the plaintiff on January 13, sent to the city clerk a letter saying: “I hereby agree to accept the salary fixed by the Common council in adopting the 1933 budget on condition that all other officers and employes are paid in accordance with the provisions of the budget and accept the amounts provided in the budget and salary ordinance for 1933.”
Following his letter of January 13, the plaintiff executed a formal instrument reciting that he waived “for the balance of” his term “all right to payment of the full salary fixed for” his office “in consideration of the payment” to him “of the amount specified for” his office in the 1933 budget adopted by the council. After this, the plaintiff, in certifying as city treasurer to the monthly pay roll of the city in performance of his official duty, inserted the amount of his salary according to the proposal of his letter of January 13, and his “waiver” of January 18, 1933.
[1][2] The plaintiff bases his claim of right on the case of Schuh v. City of Waukesha, 220 Wis. 600, 265 N.W. 699, and the cases therein cited. This case and those cited therein were recently critically examined and analyzed in Coughlin v. Milwaukee, 227 Wis. 357, 279 N.W. 62, 66. We see no need to repeat that analysis. It is clearly stated in that opinion, as pointed out by Judge Reis in his decision, here appealed, that:
It seems manifest that a city officer, like any other person, may make a gift to the city, if he wants to, and that the gift may be made of a part of his salary as well as of anything else. The officer can not be coerced to waive his salary by threats of removal or refusal to reappoint. But “the case should not be made to turn upon the mere mechanics of the operation.” Schuh Case, supra [220 Wis. 600, 265 N.W. 701];Eck v. Kenosha, 226 Wis. 647, 276 N.W. 309; Coughlin v. Milwaukee, supra. Nor can it be made to depend on the system of bookkeeping used in effecting the gift. Had the plaintiff drawn his salary at the rate of $250 per month, and by his personal check refunded $50 to the city, this would clearly have shown a voluntary contribution to the city of the amount of the waiver. No threats or coercion are involved in this case. We consider that the conceded facts clearly show an intent of the plaintiff voluntarily to contribute to the city because of the existing financial emergency $50 a month of his salary for the year 1933, and we conclude as matter of law that upon those facts such contribution was made. Connor v. Chippewa Falls, 228 Wis. 102, 279 N.W. 640;Altenberg v. City of Superior, 228 Wis. 272, 280 N.W. 342, 118 A.L.R. 1452. The amount voluntarily contributed can not be recovered.
(2) The claim for refund for salary withheld between April 17, 1934 and July, 1935, rests on a different basis. In February, 1934, at which time the common council must fix the salaries for the ensuing term by sec. 62.09 (6) (b), Stats., if they are to be changed, it enacted a salary ordinance. This ordinance declared that the “basic rate” of city officers and employees remained as under the prior ordinances, but it expressly “provided however that there shall be deducted from each payment *** during the years 1934 and 1935, unless the council shall determine that any such deduction shall not be necessary” the sum of $600 from the “basic rate” of the salary of the city treasurer, and that such amount so deducted should be retained by and become the property of the city. The ordinance also declared that the provision next above quoted was “an emergency measure made necessary” by the “financial situation affecting the revenues of the city” and that acceptance of the amount specified to be retained by the city by an officer should constitute an...
To continue reading
Request your trial