Wolcott v. Mayor And Council of Wilmington

• Decision Date: 16 July 1915
• Parties: JOSIAH O. WOLCOTT, Attorney General of the State of Delaware, at and by the relation of THE TAXPAYERS' LEAGUE, INCORPORATED, v. THE MAYOR AND COUNCIL OF WILMINGTON; THE COUNCIL of the said the Mayor and Council of Wilmington; HARRISON W. HOWELL, Mayor of the said City of Wilmington; SAMUEL C. BIDDLE, Auditor of the said City of Wilmington; JAMES F. PRICE, Treasurer of the said City of Wilmington; WILLIAM E. JOHNSON, Building Inspector for the said City of Wilmington; WILLIAM P. WHITE, President of the said Council; JACOB ZIMMERMAN, WILLIAM H. COOK, JOHN L. MCGOLDRICK, JAMES KANE, OSCAR C. DRAPER, JOHN O. HOPKINS, WELLER E. STOVER, BURTON S. HEAL, GEORGE E. GRANTLAND, JOHN J. HANEY, JOSEPH L. MCDERMOTT and ALBERT N. WILLIAMS, members of the said Council; CLARENCE M. DILLON, Clerk of the said Council; the said WILLIAM P. WHITE, WELLER E. STOVER and WILLIAM E. JOHNSON, constituting the Board of Assessment, Revision and Appeals for the said City of Wilmington; and THE UNION NATIONAL BANK
• Court: Court of Chancery of Delaware

95 A. 303

11 Del.Ch. 15

JOSIAH O. WOLCOTT, Attorney General of the State of Delaware, at and by the relation of THE TAXPAYERS' LEAGUE, INCORPORATED, v. THE MAYOR AND COUNCIL OF WILMINGTON; THE COUNCIL of the said the Mayor and Council of Wilmington; HARRISON W. HOWELL, Mayor of the said City of Wilmington; SAMUEL C. BIDDLE, Auditor of the said City of Wilmington; JAMES F. PRICE, Treasurer of the said City of Wilmington; WILLIAM E. JOHNSON, Building Inspector for the said City of Wilmington; WILLIAM P. WHITE, President of the said Council; JACOB ZIMMERMAN, WILLIAM H. COOK, JOHN L. MCGOLDRICK, JAMES KANE, OSCAR C. DRAPER, JOHN O. HOPKINS, WELLER E. STOVER, BURTON S. HEAL, GEORGE E. GRANTLAND, JOHN J. HANEY, JOSEPH L. MCDERMOTT and ALBERT N. WILLIAMS, members of the said Council; CLARENCE M. DILLON, Clerk of the said Council; the said WILLIAM P. WHITE, WELLER E. STOVER and WILLIAM E. JOHNSON, constituting the Board of Assessment, Revision and Appeals for the said City of Wilmington; and THE UNION NATIONAL BANK

Court of Chancery of Delaware, New Castle

July 16, 1915

INFORMATION TO RESTRAIN PAYMENT OF MONEY. A demurrer to the original information was overruled (10 Del.Ch. 384, 93 A 364), and all the defendants, except one of the Board of Assessment, Revision and Appeals, who had died, filed answers. Amendments were filed to the information (ante p. 1 95 A. 303), alleging in substance that the money voted by the ordinance was withdrawn on May 15, 1914, with knowledge of the filing of the original information and of the application for a restraining order to prevent such withdrawal; that the ordinance had not then become a law because the approval of it by the Mayor had not been reported to Council at another session thereof, and that after the demurrer to the original information had been overruled by the decree of the Chancellor, an Act had been passed by the General Assembly purporting to validate the unlawful ordinance and the illegal withdrawal of the money as extra compensation to the Board of Assessment, Revision and Appeals. The Act approved March 15 1915, is as follows:

"An Act to authorize the Council of The Mayor and Council of Wilmington' to compensate the present Board of Assessment, Revision, and Appeals for extra work done by them.

"Whereas during the year of 1914 an unusual amount of work has been done by the Board of Assessment, Revision, and Appeals for the City of Wilmington; and

"Whereas, the City Council did pay the members thereof for such extra services the sum of fifteen hundred dollars; and

"Whereas, a question has been raised as to whether under the present laws such extra compensation could be allowed to said Board of Assessment, Revision, and Appeals; and

"Whereas, since the payment of the said sum additional work has been done by said Board of Assessment, Revision, and Appeals for which City Council may desire to compensate the said Board; Now, therefore,

"Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met (two-thirds of the members elected to each house concurring therein):

"Section 1. The act of said City Council in paying the sum of fifteen hundred dollars to the members of the Board of Assessment, Revision, and Appeals, be and the same is hereby ratified and confirmed.

"Section 2. That City Council be and it is hereby authorized and empowered by ordinance to allow such additional compensation to the Board of Assessment, Revision, and Appeals for extra work done or to be done by them as in the judgment of Council may seem proper.

"Section 3. That all acts or parts of acts inconsistent herewith are hereby repealed." 28 Delaware Laws, Chap. 122, p. 365.

The relator claims that the Act is invalid, contrary to public policy, and in violation of the Constitution of the State of Delaware. Prayers were added asking a preliminary mandatory injunction to compel the defendants to restore to the city the money withdrawn pending the determination of the cause; that the Act be declared invalid; and that further proceedings thereunder be perpetually enjoined and for a preliminary injunction to like effect.

A rule was issued to show cause why a preliminary injunction should not be issued as prayed for, and a restraining order was granted pending the hearing for a preliminary injunction. Numerous affidavits were filed respecting the knowledge of the defendants as to the pendency of the original information and the restraining order issued thereon. By them it appeared that the ordinance was passed by the council on the evening of May 14, 1914, and soon thereafter was approved by the Mayor. The check for the extra compensation was drawn, signed by several city officials and presented to and paid by the bank to the city clerk before ten o'clock a. m. of the next day, the information having been filed at nine o'clock a. m., the restraining order made about ten o'clock a. m., and served soon thereafter, but after the money had left the bank.

The rule was argued on the information as amended, answers and affidavits. The bank by answer exonerated itself for honoring and paying the check for the money.

Preliminary injunction awarded.

Robert Adair, for the relator.

Daniel O. Hastings, City Solicitor, for the defendants, except the bank.

Saulsbury, Morris and Rodney, for The Union National Bank, did not participate in the argument.

OPINION

THE CHANCELLOR

The reasons for holding the ordinance invalid are set out in the opinion respecting the demurrer filed in this cause, 10 Del.Ch. 384, 93 A. 364. They are based entirely on the statutes and ordinances in force when the ordinance was passed, and not on the constitutional provisions, or the Act of 1915.

One question here raised is, whether the ordinance making the allowance for extra compensation was invalid because after the approval thereof by the Mayor his action had not been reported to the City Council at a session thereof held after the passage of the ordinance. This contention of the relator does not seem to be sustained by any rule of law, or procedure, or statute, on the subject, and the established custom of having an official report made to Council which enacted the ordinance of the approval thereof by the Mayor though it be a wise and orderly procedure, was probably not obligatory or a condition precedent to the validity of the ordinance, and, therefore, the disregard of the custom did not render the ordinance invalid.

One of the prayers was for a preliminary mandatory injunction to require the members of the board to refund to the city treasury the money received by them for extra compensation, so that the status quo the filing of the information should be maintained. But in view of the conclusion reached as to the main question raised, it will probably not be necessary to grant this prayer.

Counsel for the relator urges three grounds to show the invalidity of the statute of 1915: (1) It is contrary to Section 8 of Article VIII of the Constitution of Delaware; (2) it is retroactive; and (3) it is an unwarranted interference by one branch of the government, the Legislature, with another branch thereof, the judiciary.

The Constitution of Delaware has the following provision, being Section 8 of Article VIII:

"No county, city, town, or other municipality shall lend its credit or appropriate money to, or assume the debt of, or become a shareholder or joint owner in or with any private corporation or any person or company whatever."

It is obvious also that the city officers were not entitled to be paid extra compensation for the performance by them of the official duties prescribed by law for them.

"Where an officer performs duties imposed by law he is entitled to the compensation therefor fixed by law and no other. He is not entitled to extra compensation for services performed in the line of his official duty. The fact that the salary or compensation may be recognized as inadequate remuneration for the services exacted and actually performed does not change the rule. And the principle is the same although his duties are greatly increased. Courts everywhere recognize the necessity of protecting the public funds, and hence usually enforce the rule against permitting extra compensation either directly or indirectly, with appropriate strictness. * * *

"Work outside of office hours ordinarily will not justify extra pay where the salary is definitely prescribed by law; * * *

"Knowledge on the part of the municipal authorities of the performance of extra service will not bind the local corporation to give additional pay. * * * Nor will a promise to pay the officer extra compensation avail to bind the municipal corporation. * * *" 2 McQuillin on Municipal Corporations, § 525, p. 1140.

Elsewhere McQuillin calls such payments "quasi extortion." See, also, 1 Dillon on Municipal Corporations (5th Ed.) § 426.

There is no moral claim of the members of the board for extra compensation. It was the duty of the members of the board to perform all the extra duties imposed on them as such officials by the Act of 1915, and they were not legally entitled to be paid extra compensation for the extra services. How, then, could a moral obligation to pay for the extra services arise? There is no moral obligation to pay a public officer for an official service which he is legally bound to perform under his oath of office, and by the law regulating his duties in force when he assumed his office. That the duties are onerous, exacting and disproportionate to the pay fixed by law for the service when he took the office does not create an obligation of any kind, legal or moral, to pay him more. Therefore the payment of any greater salary than that fixed by law is a gratuity and a gift. Being clearly a...