McInery v. City of Galveston

• Decision Date: 19 January 1883
• Docket Number: Case No. 971.
• Citation: 58 Tex. 334
• Parties: E. O'C. MCINERY v. THE CITY OF GALVESTON.
• Court: Texas Supreme Court

58 Tex. 334

E. O'C. MCINERY

v.THE CITY OF GALVESTON.

Case No. 971.

Supreme Court of Texas.

Jan. 19, 1883.

APPEAL from Galveston. Tried below before the Hon. Wm. H. Stewart.

Appellant brought this suit against the city of Galveston May 21, 1877, to recover the sum of $6,832.82; of that amount, $6,679.01 was claimed as fees of the city clerk received and appropriated by the appellee from the 1st day of May, 1875, to the 31st day of March, 1877, during which time appellant claims to have been the clerk of said city, and as such entitled to said fees. Appellant claims the $153.81 as a balance of his salary due him for the month of March, 1877.

Appellee answered by general demurrer and general denial, and specially that appellant had during the time, from the 1st day of May, 1875, to the 1st day of March, 1877, received his salary as city clerk fixed by resolution of the council at $4,000 per annum, and in which it was declared that no fees were allowed, and requiring the clerk to collect the fees theretofore fixed, and to pay them into the general fund in the city treasury; that appellant did collect these fees and, without any objection on his part, pay the same into the city treasury, and that he was estopped from asserting any claim to the same. It also denied any liability on the part of the city to appellant on account of the reduction of his salary as such clerk for the month of March, 1877, and claimed that such reduction was authorized by the charter.

November 26, 1877, a trial was had before the court without a jury, and judgment rendered against appellant for costs, etc., from which this appeal was taken. The only error assigned was, “that the court erred in rendering judgment for defendant upon the facts proven, and failed to render judgment in accordance with the facts.”

The record shows that on March 16, 1874, the council, by resolution, fixed the salary of the city clerk at $4,000 for that municipal year, which also required him to collect the fees allowed by the charter and ordinances, and to pay the same into the city treasury. This resolution was passed December 24, 1874; it was continued in force for the municipal year ending February 28, 1876, and again continued on December 20, 1875, for the municipal year ending the last day of February, 1877.

The appellant was appointed and qualified as clerk May 7, 1875, and again March 27, 1876, and held the office until the 25th day of March, 1877. During that time, except for the month of March, 1877, he received the salary of $4,000; for that month he received his salary (under protest) at the rate of $1,800 per year, as had been previously fixed by the council for the municipal year commencing March 1, 1877. During that time appellant had collected and paid into the city treasury fees as follows: Accruing in recorder's court, $4,437.02; accruing from issuing license, etc., $2,288.21.

The charter of 1871 remained in force until August 2, 1876, when another was passed and approved.

Sec. 1, art. XXI, title X, of that charter provides: “The city council shall, on or before the first day of January in each and every year, fix the annual salary of the mayor to be elected at the next regular election, and shall, at the same time, establish the compensation or salary to be paid to the officers elected or appointed by the city council; and the compensation or salary so established shall not be changed during the term for which said officers shall be elected or appointed.”

Sec. 1, art. XXXI, title X, provides: “That no officer of this city, elected or appointed, shall receive a larger compensation for his services than at the rate of five thousand dollars per annum, and that no officer shall receive fees, except police officers under the grade of chief of police.”

Sec. 1, art. X, title III, after setting forth and in part defining the duties of the city clerk, says: “He shall also be clerk of the recorder's court, and shall have custody of all books and papers belonging to said court. He shall make out all process and writs, and enter upon a docket all complaints for violation or infraction of city ordinances before the recorder, and his judgment and sentence therein. He shall have power and authority to administer all oaths and affirmations, and as clerk of said court shall be entitled to such fees as are allowed the clerk of the district court for like services.”

That section, after defining his duties as accountant and custodian of papers, etc., then provides, in conclusion, as follows: “He shall receive for his services an annual salary, payable at stated periods, and such additional fees as may be allowed by the city council.”

Section 170 of the charter which took effect August 2, 1876, is as follows: “That no officer of this city, elected or appointed, shall receive a larger compensation for his services than at the rate of $5,000 per annum, and that no officer shall receive fees.”

Section 171 provides that “no salary not fixed by this charter shall exceed $1,800 per annum for any office which the board of aldermen or council are authorized to create.”

This charter provides that the city clerk and other officers shall be elected by the city council on the third Monday in March, or as soon thereafter as practicable, and shall hold his office until the third Monday in March thereafter.

The charter of 1871 provided that the city clerk should be appointed and confirmed at the first regular meeting of the city council after the general election in each year, and should hold his office for one year.

P. T. Languille, for appellant.

I. The fees which were paid to the city of Galveston, as clerk's fees, from the 1st day of May, A. D. 1875, to the 31st day of March, A. D. 1877, rightfully belong to appellant, and he may maintain an action therefor. The clerk's fees received by appellee through appellant and other persons, during the incumbency of the latter of the office of city clerk, amount as follows, viz.: From the 1st day of May, A. D. 1875, to the last day of March, 1876, $3,050.31; from April 1, A. D. 1876, to last day of March, A. D. 1877, $3,615.45.

II. The resolution of the city council of the city of Galveston of March 16, 1874, was and is void, because it conflicts with the charter of the city of Galveston then in force. See sec. 1, art. X, title III, Charter of the City of Galveston, approved May 16, 1871; Dillon on Municipal Corporations, sec. 251, p. 277.

III. The mere fact that appellant, from the 7th day of May, A. D. 1875, to the 25th day of March, A. D. 1877, received as clerk's fees, and paid over to appellee, the sum of $6,665.76, or a portion thereof, does not debar him from recovering the same of appellee, if the same rightfully belonged to him. Plaintiff knew nothing of the resolution of the city council of March 16, 1874, until about three months after he had entered upon the discharge of his duties as such city clerk. Bigelow on Estoppel, ch. 19, p. 473 (1st ed.).

IV. The city council of the city of Galveston had not authority to reduce appellant's salary as city clerk for the month of March, A. D. 1877. The salary of appellant as city clerk was on the 20th day of December, A. D. 1875, fixed at $4,000 per annum for the municipal year ending March 1, 1877. Art. XXI, sec. 1 of title X of the Charter of the City of Galveston, approved May 16, 1871.

Robert V. Davidson, for appellee.

I. The charters of the city of Galveston of May 16, 1871, and August 2, 1876, which were in force during the whole time of appellant's terms of office as city clerk, expressly prohibited appellant's receiving fees as compensation for official services as such city clerk.

II. Under the charters of 1871 and 1876, it was the right and duty of the city council of appellee (city of Galveston), on or before the 1st day of January in each and every year, to establish the compensation or salary to be paid to the officers elected or appointed by said council, and such compensation could not be changed during the term for which said officers were elected or appointed.

(a) The compensation for the city clerk, during or for the terms of appellant, was fixed by the council on December 24, 1874, and December 20, 1875, at a salary or fixed sum of $4,000 per annum, and this salary or compensation so fixed could not be changed or increased during appellant's terms of office. Charter (special law) of 1871, title X, art. XXI, sec. 1.

III. Sec. 1, art. X, title III, of charter of 1871, provides that the city clerk “shall receive for his services an annual salary, payable at stated periods, and such additional fees as may be allowed by the council.”

(a) The council, on December 24, 1874, provided that the city clerk for the municipal year 1875 (first term of appellant) should receive a stated salary, but should not receive fees.

(b) The same provision was made for the municipal year 1876 (appellant's second term); also during this latter term of appellant the charter of 1876 went into effect (August 2d), which inhibits any officer from receiving fees. Charter of 1871, title III, art. X, sec. 1; Charter of 1876, title XII, art....