Watts v. City of Princeton
| Decision Date | 06 December 1911 |
| Docket Number | 7,342 |
| Parties | WATTS v. CITY OF PRINCETON |
| Court | Indiana Appellate Court |
From Gibson Circuit Court; Oscar M. Welborn, Judge.
Action by Edwin E. Watts against the City of Princeton. From a judgment for defendant, plaintiff appeals.
Affirmed.
Harvey Harmon, for appellant.
John W Brady, for appellee.
This was an action brought by appellant against appellee for services rendered by appellant as a member of the board of health and charities of said city.
The complaint is in two paragraphs, to each of which a demurrer was sustained for want of facts, and judgment was rendered in favor of appellee.
The errors assigned are the rulings on said demurrers.
The two paragraphs of complaint are practically the same, except that the second paragraph alleges that a new mayor, who succeeded the one who appointed appellant, failed to appoint a new board of health.
For the purposes of the question presented by the rulings on the demurrers, the two paragraphs may be treated as identical.
The substance of the first paragraph is as follows: The defendant, during the years 1905, 1906, 1907 and 1908, was a city of the fifth class. On November 3, 1905, said city "was being swept by epidemics of diphtheria and scarlet fever," causing many of its citizens to become sick and many of them to die. Prior to said epidemics said city had never had a "board of health and charity," as required by law, and on account of said epidemics an emergency arose for the appointment of such board, to the end that such epidemics might be checked, and proper quarantine regulations made and enforced. On said November 3, Arthur P. Twineham as mayor of said city had the power to appoint said board of health, and asked appellant to accept a place on said board. Appellant accepted such position, and he and the other members of said board were by said mayor appointed to serve as such commissioners until such time as their respective successors should be appointed and qualified, and said appointments were on said date concurred in by the common council of said city. On said date, at a regular meeting of said council, and before appellant's said appointment and acceptance, he was informed that, if he would accept such appointment, an ordinance would be passed by the common council, at a later meeting, providing a salary for him and said other commissioners, "in a sum not to exceed $ 100 a year for each of them." Appellant was informed by said mayor and the members of said council that, on account of said epidemics, it was necessary that his services should begin at once, and before such salary ordinance was passed, and that such ordinance could not be passed except by unanimous consent. Appellant and the other members of said board, relying on said promise so made by such mayor and members of said council, accepted said appointment, and at once entered upon the discharge of their respective duties. Charles F. Diefendorf, the secretary of said board, has been paid for his services at the rate of $ 100 a year since said date. Appellant, as a member of such board, performed all the duties required of him, and on numerous occasions since his appointment requested said council to pass said ordinance providing for his salary, but said council refused and still refuses to pass such ordinance. On November 6, 1908, appellant rendered his bill to said city and its common council, asking pay for said services from November 3, 1905, to November 6, 1908, which bill was filed with the clerk of said city, and on December , 1908, said common council, in regular session, refused to pass any ordinance providing for such payment, and refused to pay for said services, and still refuses to pay him any amount whatever.
Said services were rendered by appellant at the special instance and request of said mayor and the members of the common council of said city, and "were reasonably worth $ 100 a year," and continued from November 3, 1905, to the time appellant filed his complaint. Appellant received no pay of any kind for such services, and said sum asked for is wholly due and unpaid. Judgment is demanded in the sum of $ 400.
The statute providing for the appointment of the members of a board of health (§ 8838 Burns 1908, Acts 1905 p. 219, § 213), makes provision for their compensation as follows: "Such commissioners, except the secretary, shall each receive a salary to be fixed by ordinance not exceeding $ 100 per year."
This complaint alleges that the common council of said city never passed any ordinance fixing the salary of any member of said board of health, but appellant insists that this allegation does not render the complaint insufficient as against demurrer, in view of the other allegations, showing the emergency under which said board was appointed, and the agreement between the common council and mayor of said city and this appellant at the time said appointment was made and accepted, to the effect that such ordinance would be passed; that under said facts said city is bound by an implied contract to pay the reasonable value of the services so performed by appellant for said city. It is upon this theory that appellant insists that the complaint was good as against a demurrer. Appellant in his brief urges the following question: "The only question * * * in this case is * * * whether or not appellant, * * * acting as a member of the board of health, * * * when no definite salary had been fixed by ordinance, * * * is entitled to recover a reasonable compensation for his services."
He insists that while so acting he was "an employe of the city, not an officer, within the strict meaning of the term." In this contention he is not supported by the authorities.
The statute that authorized and created the board of health, recognizes and treats such board as one of the executive departments of the city. §§ 8684, 8838 Burns 1908, Acts 1905 p. 219, §§ 82, 213.
In characterizing the duties of a board of health, this court,...
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