Kindricks v. Machin

WOOD, J., (after stating the facts). The statutes of the State provide that the mayor of cities of the first class shall receive such salary as their council “may designate” or “fix,” and, “when once fixed the same shall not be increased or diminished during the term to which he may have been elected, by way of fees, fines or perquisites.” Secs. 5483, 5599 and 5617 of Kirby’s Digest. It is clearly shown by a preponderance of the evidence that it was the intention of the city council of Argenta, especially after the office of manager of its electric light department was abolished and the duties of that position were imposed upon the mayor, to allow the mayor in addition to the salary of $125 per annum which had been fixed in 1908, the sum of $150 per month, or an annual salary amounting in the aggregate to the sum of $1,925. ■ Mord Roberts assumed the duties as acting mayor in October or November, 1915, and “expense accounts” appear in the record which show that from December 20, 1915, allowances were approved by the city council consecutively and continuously thereafter, in the sum of $150 per month up to April 9, 1917, when the appellee, Pixley, was inducted into office. Roberts testified that when he went in as acting mayor, it was understood between him and the city council that he was to receive as compensation the sum of $150 per month. This monthly amount the city council approved as long as he acted as mayor. The allowances were made under the designation “expense account” including the month prior to December 20, 1915, and continuing to October 20, 1916. After Mayor Faucette returned, the monthly allowance was continued under the same designation (“expense account”), until his term of office expired April 9, 1917. Now, it is wholly immaterial that these monthly allowances were designated as “expense account.” The undisputed evidence shows that the purpose in such allowance was to increase the salary or compensation of the mayor on account of the additional duties that had been imposed upon him in managing the electric light department. It is true that a more direct and appropriate method of increasing the salary of the mayor of the city of Argenta would have been by ordinance or resolution, naming the aggregate amount per annum to be paid monthly, but the fact that such increase was not made in this particular manner does not render the action of the city council in increasing the salary of the mayor, void. The statute authorizing the city council to fix the mayor’s salary does not prescribe the particular manner in which the council shall act in so doing. In the absence of any mode prescribed by law, the council may in its discretion, exercise its power in any usual and appropriate manner. 28 Cyc. 275, and cases cited. See also State v. Nichols, 83 Minn. 3; Fountain v. Mayor, 50 Mich. 260. The proof shows that the monthly allowances were made by vote of the city council, and it is not contended by appellants that these allowances were made in any but the usual and appropriate way. It was not alleged, nor is there any proof that the action of the city council in fixing the salary of the mayor in the manner indicated was an actual fraud or resorted to for the sinister purpose of evading the law prohibiting a mayor’s salary from being increased or diminished during the term for which he is elected. Taking the testimony as a whole, we are convinced that the action of the city council, as shown by the testimony of Mord Roberts and the regular monthly allowance of “expense accounts” and the ordinance of January 18, 1916, was tantamount to fixing the salary of the mayor at the sum of $150 per month in addition to the annual salary of $125, and that such was the amount of the salary or compensation of the mayor as fixed by the council at the time that appellee, Pixley, qualified as mayor. Therefore, so far as the intervener was concerned, this action of the council did not fall within the provisions of the law forbidding the salary or compensation of a mayor to be increased or diminished during the term for which he may have been elected. Secs. 5483 and 5617 of Kirby’s Digest. The resolution of July 1,1917, appropriating the sum of $150 per month out of the general revenue of the city “for the current and incidental expenses of the mayor’s office, ’ ’ when viewed in connection with the action of the council prior to the time when Mayor Pixley qualified as mayor, showed that it was the purpose' of the city council to continue to make appropriations for the salary of mayor the same as it had been fixed before, and as it existed at the time when Mayor Pixley entered upon the discharge of the duties of his office. It follows that the court did not err in entering a decree dismissing the complaint for want of equity, and such decree is therefore affirmed.