Perry v. Village of Cheboygan

Champlin, J. This action was brought by. plaintiff to recover from defendant for services as member of the board of water commissioners of the village of Cheboygan for one year from August 1, 1882,'and also for extra services outside of duties as water commissioner. The declaration was the common counts in assumpsit. A bill of particulars was filed, showing items from May, 1880, to April, 1883, amounting to $805.15. This includes one item without date for “ services as member of the board of water commissioners of the village of Cheboygan for one year, from August 1st,, 1882, to August 1st, 1883, inclusive — $500.” The plea was the general issue, and notice that plaintiff had received fifty dollars in full accord and satisfaction of all claims and demands. Plaintiff recovered $166.25. It was proved on the trial that plaintiff, on the 11th day of July, 1882, was appointed a member of the board of water commissioners of the village of Cheboygan by the common council of the village; , that plaintiff is an engineer and mechanic; that immediately after his appointment he entered upon the duties of his office; that the water-works were nearing completion when he was appointed. After his appointment and during the year they were completed, tested and — 252 — accepted. The extra services charged for consisted of the personal labor and superintendence by the plaintiff of work at various times in connection with the constructing and completing the water-works, a portion of which required mechanical skill, and were worth in the aggregate from $116.25 to $249.50; that when any mechanical work had to be done, the plaintiff did it, or superintended the doing of it. Plaintiff testified on cross-examination : “I generally did the work at the request of the board of ■water commissioners or yourself (meaning defendant’s counsel, who was also a member of the board) ; sometimes I did it on my own responsibility, knowing it should be looked after. I kept no account of my services at the time, and did not intend to make any separate charge for my extra work, the items of which are set forth and contained in the bill of particulars, expecting that the council would allow me a fair compensation for my services, and the claim that I sent in to the council included the extra work as well as the official services; and after the council refused to allow my account I went to work and got it together the best way I could.” On the 3d day of July, 1883, plaintiff sent in a bill of $10 to the council, for services for one year as a member of the board, which was allowed and paid. The amount was a mistake. Plaintiff intended to send in a bill for $100, and July 17, 1883, he sent in another bill for $90. This was referred to the committee on claims and accounts, who, in turn, referred it to the board of water commissioners, and they recommended its ■ allowance; but the council offiy allowed it at fifty dollars, which amount was paid to the plaintiff. Plaintiff testifies that there was no understanding or agreement that he should take the fifty dollars by way of compromise, and he did not accept it in full settlement of his claim against the village. The defendant was incorporated under the General Law for the incorporation of villages. How. Stat. ch. 81. The only provision contained in this chapter relative to the compensation of village officers is in § 2825, which reads as follows: “ The president and trustees shall serve without compensation. All other officers, except where other provision is made — 253 — herein, or by law regulating fees for services, shall.receive such compensation as the council shall prescribe.” The charter authorizes the village to construct and maintain water-works for supplying the village with water, and the council is authorized, by the passage of proper ordinances, to provide for the appointment of a board of water commissioners, consisting of three members, “to take the charge and management of such water-works in the manner and to the extent which shall be provided in the ordinances of the village.” The ordinance under which the board of water commissioners was appointed, and under the provisions of which the board acted and derived its authority, and under which the water-works for Cheboygan village were constructed, is numbered 26, and entitled “ Relative to' the appointment .of commissioners of water-works and the duties of such commissioners ;” the 1st, 8th and 11th sections of which provide and read as follows: “Sec. 1. The village council shall appoint, within ten days after the adoption of this ordinance, three suitable persons water commissioners, who shall constitute and shall be known as the board of water commissioners of the village of Cheboygan. Sec. 8. No commissioner shall be directly or indirectly interested in any contract relating to the work or the material thereof, nor in any work or materials for the work, nor for any portion of the water-works; nor shall any commissioner be surety on-the bonds of any person contracting to do any work or furnish any materials connected in any way with said water-works. See. 11. Said board shall certify to the amounts due upon all contracts and for all material furnished and performed in constructing or repairing said water-works; and all bills and accounts thus certified for amounts so due shall be audited by the village council in the same manner as other bills and accounts against the village.” Special authority is conferred by the charter upon the council to appoint a board of sewer commissioners and to fix their compensation; also to organize afire department, and to fix the compensation of the officers, firemen and employees — 254 — of the department-; but the charter nowhere gives the council authority to fix the. compensation of the members of the board of water commissioners, nor does the charter make any provision for compensation to the members of such board, unless it is contained in § 2825, above quoted. The counsel for the plaintiff contends “ that the Legislature did not intend the General Act ” (§ 2825) “ to apply to boards, is shown in the fact that in the appointment of all other boards a special provision is made for compensation of the members,”— as in the case of sewer commissioners and the fire department. If this is a proper case for the application of the maxim that the express mention of one thing is the exclusion of another, the position of the plaintiff’s counsel is undoubtedly correct. Upon an examination ^of the various provisions of the charter I am of opinion that the omission to provide compensation to members of the board of water commissioners was intentional, and it follows that the members accepting such office must be deemed to have done so with knowledge of and with reference to the provisions of the charter relating to the services which they were to perform, and that such services were to be rendered gratuitously. The court erred, therefore, in refusing to charge the jury as requested by defendant in the second request, as follows: “The council are under no obligation to make compensation to any of the officers of the corporation unless the charter expressly provides that compensation shall be made, or that the officers are entitled- to compensation.” This disposes of the claim of plaintiff to compensation as a member of the board of water commissioners. The extra services claimed, and for which a recovery was had, appear in many instances to have been performed in the line of duty as a member of the board, and' for such the village was not liable. Those which were performed as a mechanic were proper charges against the village if not voluntarily rendered, or without authority or direction of the corporate authorities. With respect to this branch of plaintiff’s claim the circuit judge rightly instructed the jury that “one cannot be his own judge of when, where and what services — 255 — are needed by a municipal corporation, and then perform such service%of his own motion and make the corporation liable for them.” The only authority for performing such extra'services which the plaintiff produced is his own testimony, above quoted, that he generally did the work at the request of the board of water commissioners, or of a member of the board, and sometimes he did it on his own responsibility, knowing it should be looked after. No single member of the board would have authority to employ engineers or mechanics, and what he did upon his own responsibility would be without authority to bind the village. The record before us does not contain the whole of the ordinance relative to the appointment of commissioners of water-works and the duties of such commissioners, and we are unable to determine what authority is vested in it by the ordinance, or what duties are prescribed therein to be performed by such commissioners. The Qharter devolves upon the council the duty of auditing and settling the accounts of the village officers, and so far as practicable of all persons having claims against the village; and the ordinance above cited requires all bills and accounts and all amounts due upon contracts to be certified by the board, and the accounts so certified are to be audited by the council in the same manner as other bills and accounts against the village. This was not done in this case in the ordinary way. The bill of plaintiff was first presented to the council, which plaintiff testifies included the extra work as well as the official services. This was referred to the board and they reported in favor of allowing it. Although the presentation of the claim in .an aggregate sum and not in items, as should have been done, wás in this manner approved by the board, we may consider the case as if the claim had been duly certified by the board to the council. The council audited the claim at fifty dollars. Now, if plaintiff was dissatisfied with this allowance, he should not have applied foi; and received the warrant on the treasurer and obtained payment thereof. He must be held to have acquiesced in the settlement thus made. Tf the council had allowed and paid him more than he was — 256 — entitled to, they could not have recovered back the excess under a claim that they were ignorant of facts #t the time it was allowed (Advertiser & Tribune Co. v. Detroit 43 Mich. 116); and there is no good reason why plaintiff is not estopped, by accepting payment of the amount allowed, from making a further claim for the same services passed upon by the council. The judgment of the circuit court must be Reversed and a new trial granted. The other Justices concurred.