Roberts v. City of Lincoln

Maxwell, J. ’ The plaintiff was elected engineer of the city of Lincoln in April, 1874. In May following an ordinance was passed by the proper authorities of the city, abolishing the salary of the city engineer, and providing that he should receive five dollars per day for all the labor performed by him for the city. This action is brought by him to recover a salary as such engineer during the period he held that position. The court below rendered judgment for the defendant, to reverse which the cause is brought into this court by petition in error. On the trial of the cause in the court below the plaintiff, to maintain the issue on his part, offered in evidence a printed book of revised ordinances of the city of Lincoln, dated November 6, 1874. This was introduced under the objection of the defendant that it was not the best evidence. The record recites “ said book being the revised ordinances of the city of Lincoln, Nebraska, approved November 6, 1874.” Article III of said book, provides as follows: SALARIES OE OFFICERS. Section 1. That the city officers of the city of Lincoln be paid respectively the following sums annually in city warrants at par for their services as such officers, to wit: Mayor, three hundred and sixty dollars, payable quarter yearly. Oouncilmen, each, two hundred and twenty-five dollars, payable quarter yearly. Policemen, each, 'seven hundred and fifty dollars, payable monthly. [355] Chief engineer of the fire department, three hundred dollars, payable monthly. Engineer of the steam fire engine, seven hundred and fifty dollars, payable monthly. Street commissioner and fire warden, seven hundred and fifty dollars, payable monthly. City engineer, five dollars per day, payable monthly. City clerk, one thousand dollars for all services, payable monthly. Marshal, one thousand dollars for all services, payable monthly. City treasurer, four per cent, on all collections. There is nothing in the record to show that this book containing the revised ordinances was not the original record. Such being the case section one, of Article III of the revised ordinances, approved November 6, 1874, superseded the ordinance abolishing the salary of the city engineer, approved in May, 1874. This evidence being before the court, and no attempt being made to impeach it in any manner, the court could not disregard it. If the evidence was improper, it should have been excluded; if properly admitted it must be considered, and given due weight. The ordinance in question provides for the payment of a salary to the city engineer, and the fact that he presented certain accounts to the city council for services does not estop him from recovering the amount due. As the finding is clearly contrary to the evidence,the judgment is set aside anda new trial awarded.. Remanded for trial de novo.