Love v. Mayor of Jersey City

The opinion of the court was delivered by Scudder, J. This action is brought by the plaintiff to recover the unpaid balance of his salary at the rate of $5000 per year, for the full term of three years for which he was elected, and during which he performed the duties of his office as city collector. He bases his claim on the act approved March 24th, 1873, by which his appointment was directed to be made by the board of finance and taxation for the term of three years, and the salary designated at $5000 per annum. He insists, that after he had entered on the duties of the office, the term and the salary were fixed, and could not be changed by the subsequent act of the legislature, and the resolution of the board. This must be founded on the idea that his employment was in the nature of a contract for services which could not be altered without his consent. But his appointment was not a contract for private service between individuals, but a selection for the duties of a particular office in a municipality, which, together with all the local offices and officers within it, are created by the legislature and subject to legislative control. Judge Dillon says, (Municipal Corp., § 168,) “the legislature in the absence of constitutional limitation, may create and abolish offices, add to or lessen their duties, abridge or extend the term of office, and increase, diminish, or regulate the compensation of officers at its pleasure.” Neither acts of the legislature, nor ordinances of city councils or boards, naming terms and salaries are in the nature of contracts with officers. Although the term and the salary may be named in the charter, yet there is no contract for a stipulated time or price that is binding on the public. A distinction is made in some cases between such services as are public or official and those that are professional and private ; but in this case no such question can arise, as the services rendered by the city collector were the ordinary duties of a public officer in the collection of taxes. These principles are settled in some leading cases referred — 459 — to in the book above cited, some of them covering this one in all points. But we need not go elsewhere to look for authority, for in City of Hoboken v. Gear, 3 Dutcher 265, this court held that an appointment of a police officer for a definite- term and stated salary was not a contract that the city will pay during; the term for which the officer was appointed, and that the city might determine the relation. When, therefore, the plaintiff in this case assumed the duties of the office to which he had been appointed by the board of finance, he did so, subject to-legislative control both as to his term and compensation. After he had been in office about one year this 'authority was exercised, and the act passed by which his salary was reduced. If he was dissatisfied he should have tendered his resignation. It might have been accepted, and he discharged, if unwilling-to perform the duties of the office at the smaller rate of compensation. State v. Ferguson, 2 Vroom, 107. His continuance in office was a consent to the reduction, of which he had full knowledge. But it is further said that the power given by the legislature to the city was to reduce the salary from $5000 to $4000,. and the board of finance and taxation reduced it to $3000. The act of March 27th, 1874, enacts that there shall be paid to this officer an annual salary, in lieu of the salary then paid,, not to exceed the sum of $4000. The limitation is here confined to the excess, and does not extend to the diminution. A maximum rate is fixed, but it is not said that it shall not be less than $4000 or any other sum. This limitation leaves the minimum rate to be settled in the discretion of the official body to whom the control is delegated. It is further said that if this be so, the board of finance and taxation was not the body authorized to make the reduction. My opinion is, that by the power of appointment and control given to this board in the case of this officer, they had such authority; but it is not necessary to decide this point, for it will never be'tolerated that a municipal officer shall receive his pay at a fixed rate without dissent, hold his office for his — 460 — full term, and at the end demand a higher rate named in some prior act. If he was not satisfied he should have offered his resignation, and the city would have found some one to take his place for the reduced salary. His continuance in office was an assent to the reduction of his salary, and his receipt of monthly warrants and payments during the whole term is an estoppel against any error in the mode of reduction, or the amount fixed by the board of finance and taxation. This principle was applied in Stagg v. Insurance Co., 10 Wall. 589, to an insurance agent, who had received a general circular from the company, which contained the terms of his compensation, and after acting under it several years without complaint it was said that he was . estopped to deny that he was -employed on these terms. The production of a circular of prior date with other terms of compensation did not alter the case. A public officer is no less strongly bound by his active consent to the terms of his employment, where he has every month received his salary at the reduced rate, with nothing more than an informal notice to some member of the board of finance and taxation that he shall claim a greater compensation. He had the simple remedy in his own hands, if he felt aggrieved by the action of the legislature and board of finance. If he continued in office his acquiescence establishes his consent to the terms fixed by the board. The resolution of the board of finance, dated May 29th, 1874, fixing the compensation at $3000 from and after the 1st day of May, 1874, and after almost the entire month’s services had been rendered, was objectionable; but he received the warrant for that month’s j>ay at the rate of $3000 per annum, without formal protest or exception, and is now concluded by such acceptance. By the finding it appears that no payment or warrant has been made since March 31st, 1876. The suit was began January 18th, 1877. This will entitle the plaintiff to his salary from March 31st, 1876, to December 31st, 1876, at the rate ■of $3000 per year, or $250 per month, which amounts to f2250, for which amount the plaintiff is entitled to judgment.