Mitchell v. City of Thomasville

• Decision Date: 20 December 1934
• Docket Number: 24156.
• Citation: 178 S.E. 161,50 Ga.App. 304
• Parties: MITCHELL v. CITY OF THOMASVILLE.
• Court: Georgia Court of Appeals

178 S.E. 161

50 Ga.App. 304

MITCHELL v. CITY OF THOMASVILLE.

No. 24156.

Court of Appeals of Georgia, First Division

December 20, 1934

Syllabus by the Court.

"A public officer takes his office cum onere, and so long as he retains it he undertakes to perform its duties for the compensation fixed, whether such duties be increased or diminished. He can not claim extra compensation for the performance of additional work within the line of his official duties, unless additional compensation is provided by competent authority."

Error from Superior Court, Thomas County; W. E. Thomas, Judge.

Petition by J. W. H. Mitchell against the City of Thomasville. To review a judgment sustaining a general demurrer to his petition, plaintiff brings error.

Affirmed.

Titus & Dekle, of Thomasville, for plaintiff in error.

P. C Andrews, of Thomasville, for defendant in error.

GUERRY Judge.

J. W H. Mitchell brought this action against the city of Thomasville. It appears that he was treasurer of the city of Thomasville from August 25, 1925, until January, 1933. In his petition he contends that the city is indebted to him in the sum of $300 per year for the years 1929 to 1932, inclusive as a reasonable compensation for clerical services and labor performed for the city and accepted by it, which amount is extra his usual compensation. The theory of the plaintiff's action is that under the Act of August 18 1925 (Ga. Laws 1925, p. 1480, 1491), authorizing and empowering the city of Thomasville to enter into contracts for improvements on the city streets and the issuance of bonds against abutting properties, he, as treasurer of the city, did actually perform additional duties, and that the act provided for the levying of an additional 1 per cent. interest upon the assessments for the defraying of expenses in connection with the bond issue, and that for the services rendered and accepted by the city he is entitled to a reasonable compensation (which he alleges is $300 per year).

It is first to be observed that an officer of a municipal corporation depends solely for his remuneration upon some provision by charter, statute, or ordinance. In the absence of such provision he is not entitled to compensation for his services. "A right of a public officer to compensation must rest upon some provision by charter, statute or ordinance. In the absence of any such provision, he is not entitled to payment for his services." Elliot on Municipal Corp. § 188; McCumber v. Waukesha County, 91 Wis. 442, 65 N.W. 51; Locke v. City of Central, 4 Colo. 65, 34 Am.Rep. 66; Kinney v. United States (C. C.) 60 F. 883. "His services are not rendered under any contractual relation. Even where compensation has been provided for, the officer has no contractual right prospectively to such compensation for the remainder of his term. It is under the control of the legislature, and in the absence of constitutional restrictions it may be increased, diminished or entirely taken away at any time." Elliot on Mun. Corp. § 188; Cooley, Const. Lim. (7th Ed.) 388; Swann v. Buck, 40 Miss. 268. In the case of Twiggs v. Wingfield, 147 Ga. 790, 95 S.E. 711, L.R.A. 1918E, 757, the Supreme Court of this state dealt exhaustively with this question. It was there said: "A public officer takes his office cum onere; and so long as he retains it he undertakes to perform its duties for the compensation fixed, whether such duties be increased or diminished. He cannot claim extra compensation for the performance of additional work within the line of his official duties, unless additional compensation is provided by competent authority." In 1 Dill. Mun. Corp. (5th Ed.) 426, it is said: "It is a well settled rule that a person accepting a public office, with a fixed salary, is bound to perform the duties of the office for the salary. He cannot legally claim additional compensation for the discharge of these duties, even though the salary may be a very inadequate remuneration for the services. Nor does it alter the case that by subsequent statutes or ordinances his duties within the scope of the charter powers pertaining to the office are increased, and not his salary." See also, in this connection, Board of Commissioner of Marshall County v. Johnson, 127 Ind. 238, 26 N.E. 821; Foote v. Lake County, 206 Ill. 185, 69 N.E. 47; Swann v. Buck, 40 Miss. 268; Palmer v. Mayor of New York, 2 Sandf. (N. Y.) 318; People ex rel. Ph nix v. New York, 1 Hill (N. Y.) 362; Wittmer v. N.Y., 50 A.D. 482, 64 N.Y.S. 170; Evans v. Trenton, 24 N. J. Law, 764; Kobel v. City of Detroit, 142 Mich. 38, 105 N.W. 79; City of Decatur v. Vermillion, 77 Ill. 315; City of Covington v. Mayberry, 9 Bush (72 Ky.) 305; May v. City of Auburn, 112 Me. 143, 91 A. 177; O'Sullivan v. New Orleans, 49 La. Ann. 616, 21 So. 854; City of Indianapolis v. Lamkin, 62 Ind.App. 125, 112 N.E. 833; Bridges v. City of Sierra Madre, 27 Cal.App. 93, 148 P. 965. As was said in Buck v. City of Eureka, 109 Cal. 504, 42 P. 243, 248, 30 L.R.A. 409: "It is of the last importance that any and every public officer entering upon the discharge of his duties should know once and for all that, be the duties onerous or be they easy, the compensation for them must be that fixed by law, and that only. If they become too burdensome, the law does not forbid the officer's resignation."

It appears that the act providing for the bond issue provides...