Rettinghouse v. City of Ashland

• Decision Date: 27 April 1900
• Citation: 82 N.W. 555,106 Wis. 595
• Parties: RETTINGHOUSE v. CITY OF ASHLAND.
• Court: Wisconsin Supreme Court

106 Wis. 595

82 N.W. 555

RETTINGHOUSE

v.CITY OF ASHLAND.

Supreme Court of Wisconsin.

April 27, 1900.

Appeal from circuit court, Ashland county; O. B. Wyman, Judge.

Action by Herman Rettinghouse against the city of Ashland for salary as city engineer. From a judgment in favor of plaintiff, defendant appeals. Affirmed.E. F. Gleason and Sanborn, Gleason & Sleight, for appellant.

Alvord & Dillon, for respondent.

CASSODAY, C. J.

This action is to recover $300, the balance of the plaintiff's salary as city engineer, and interest. The defendant answered by way of admissions, denials, and counter allegations. A jury having been waived, and the cause tried, the court at the close thereof found as matters of fact, in effect, that May 1, 1895, the plaintiff was duly appointed and acted as city engineer of the defendant for the term of one year; that the city council fixed the salary of the city engineer at its first regular meeting in February, 1896, for the year beginning May 1, 1896, and ending May 1, 1897, at the sum of $800; that May 1, 1896, the plaintiff was reappointed to succeed himself for the term of one year, beginning May 1, 1896, and ending May 1, 1897; that May 9, 1896, the plaintiff entered into a written agreement with Thomas Bardon, the then mayor of the city, wherein and whereby he agreed to perform such duties of the office as he should be requested to perform by the mayor at the specified sum of $5 per day for each day actually worked, and waived the salary as so fixed by the common council pursuant to the city charter; that the plaintiff did perform the duties of such office until May 1, 1897; that February 6, 1897, the plaintiff filed a bill with the city council for $500 in full for his salary for the entire year, which was allowed in full May 11, 1897; that June 22, 1897, the plaintiff filed a bill with the city council for $300, the balance due for his salary as so fixed by the council, and the same was disallowed, and from such disallowance the plaintiff duly appealed to the circuit court. And as conclusions of law the court found that the contract so made between the plaintiff and the mayor was illegal and void, and contrary to the charter of the city, and was made without authority of law, and was void on the further ground that the same was against public policy; that the plaintiff was entitled to the salary of $800 so fixed by the council in February, 1896; that the allowance of the city council of $500 did not constitute an accord and satisfaction; that the plaintiff was entitled to judgment for $300, with interest from May 1, 1897, and costs, and ordered judgment to be entered accordingly. From the judgment so entered the defendant brings this appeal.

The city charter required city officers, including the city engineer, to be paid a salary, which should be fixed annually, and, among other things, provided that “the common council at their first regular meeting in February shall fix the amount of salary which shall be received by every city officer entitled to a salary, who may be elected or appointed in the city during the ensuing year, which salary shall not be increased or diminished during the term of office for which such officer may be elected or appointed; the salary shall be paid out of the city treasury monthly at the end of each month.” Section 8, subd. 4, c. 27, Laws 1889. Under that provision of the charter it is very manifest that even the common council itself had no power to increase or diminish the plaintiff's salary during his term of office. Much less could the mayor, who had no power to fix his salary, do so. Such express prohibition in the charter would seem to be for the very purpose of preventing such dickering in respect to salary in connection with the appointment or election of officers, in order to secure more efficient service for the public. Carrothers v. Russell, 53 Iowa, 346, 5 N. W. 499;State v. Collier, 72 Mo. 13;State v. Purdy, 36 Wis. 213;Hoffman v. Chippewa Co., 77 Wis. 214, 45 N. W. 1083, 8 L. R. A. 781.

It is virtually conceded that the agreement between the mayor and the plaintiff was a nullity; but it is contended that the existence of the agreement, the filing of the claim for $500 ...