Kollock v. Dodge

The following opinion was filed ©ctober 20, 1899: ■ Bardeen, J. The facts involved in this litigation may be stated briefly as follows: The city charter (ch. 36, Laws of' 1882) provides that on the third Tuesday of April of each year the common council may elect a city surveyor and other officers named, to hold office for one year. Sec. 15 of subch. Ill provides that he shall be a practical surveyor and — 191 — engineer, and. that “ the common council shall prescribe the* duties and fix the fee and compensation for any service performed by him.” None of his duties is prescribed by the-charter, except as hereinafter mentioned. Sec. 7 empowers-the council to fix the compensation of all officers elected by it, by resolution, at the time the office is created or at the-commencement of the year, which shall not be increased or diminished during the term such officer shall remain in office. At the commencement of the year for each of the years from 1893 to 1899, inclusive, the council fixed the-compensation of the city surveyor, and afterwards duly-elected the defendant Dodge to that office. During the period' covered by the record the incumbents of that office were r A. D. Conover, from April, 1882, to 1884; Capt. John Nader, from April, 1884, to 1887; and defendant Dodge from 1887" to the time this action was brought. Prior to 1883 no public sewers had been constructed in the city. In the spring-of that year Mr. Conover was instructed to prepare plans- and maps for a complete system of sewerage. Such plans-were prepared during his term of office, and his bill for $300' was paid in July, 1884, after his term of office had expired. His plans were not adopted. In August, 1884, the project of a district system of sewerage was set on foot. Ch. 195, Laws of 1885, Avas passed, which superseded the former provisions of the charter on the subject of sewerage. Plans, were presented by Capt. Nader, which were submitted to-Mr. G-ray, a sanitary expert from the East, and, as modified, Avere adopted by the council in April, 1885. Following the adoption of these plans, various sewers were constructed under the supervision of Capt. Nader during his incumbency of the office of city surveyor, and his services in that regard were duly paid by the council, he receiving therefor over $1,500 above his salary. Erom 1887 until 1893, while Mr. Dodge was in office, sewers were constructed under his supervision, and paid for by the council, over and above his192 •salary. The district system, by which the sewage was turned into lakes, was unsatisfactory. In August, 1893, a resolution was adopted by the council inviting Mr. Dodge, Oapt. Nader, and other engineers to submit plans for diverting the sewage from the lake, and for its chemical treatment, and which “authorized the sewerage' committee to, agree with said parties as to the price for the plans and specifications submitted, and also as to the price to be charged by the party whose plans and estimates are accepted for superintendence of construction of the sewers and erection of necessary buildings and appliances.” The matter was duly advertised, and plans were submitted by Mr. Dodge, Oapt. Nader, and others. None of the plans was adopted.. In July, 1895, the council passed a resolution providing for the appointment of a committee to examine into and report a feasible plan of sewerage to take the place of the present system, and to obtain plans for the system recommended by them. In September of that year the committee arranged with Mr. Dodge and Oapt. Nader to prepare a joint plan. Such plan was prepared by them, approved by the committee, and reported to and adopted by the council. Thereupon orders were made for the construction of intercepting sewers and for the disposal plant, and the work of constructing the sewers was done under the plans so adopted, and under the supervision of the men who prepared them. While this work was in progress the question of the purification of the sewage which was to be collected was discussed, and Dodge and Nader were-requested to, and did, prepare detailed plans and specifications for a land-treatment system. On July 10, 1896, the council adopted a resolution empowering the general sewer committee to enter into an agreement with Dodge and Nader for the compensation to be paid them for the work, done and to be done by them,, or either of them, in planning and superintending the construction of the new interception — 193 — sewers and disposal works, or farm to be used in connection therewith. An agreement was finally made that the compensation of both engineers should be five per centum upon the total cost of construction. Afterwards both Dodge and Nader presented bills to the council for $1,000 each as part payment for their services. The bills were referred to the proper committee, reported for payment, and the council duly allowed the same. In October, 1897, Dodge and Nader submitted a proposition to the council, made by the American Sanitary Engineering Company, for the construction of a disposal plant. This proposition was finally accepted, and a contract entered into. The former plans were modified to correspond to the changed conditions. The work of completing the intercepting sewers and the disposal plant proceeded under the joint supervision of Dodge and Nader. At the time this action was commenced this work had been completed at a cost of about $100,000. It is undisputed that work of preparing the plans and of superintendence required the expenditure of a large amount of time on the part of both engineers; that the sewerage problem was one of great difficulty; that it involved special study and skill; that it was and is a special branch of engineering, involving a high degree of skill and responsibility, and without the scope of ordinary engineering or surveying services. No question is raised as to the reasonable value of the services rendered. The record shows without dispute that the services rendered have all been performed by Mr. Dodge, relying upon the power and intention of the council to compensate him therefor, and that the city has received the benefit of such services, expecting to and willing to pay therefor. It further appears that he would not have undertaken the work, except upon the understanding that he was to receive pay therefor. Erom the very beginning of the work, the council have understood and recognized the fact that this work was not within the official — 194 — duties of the surveyor, and not included within his salary. As an instance of this understanding, the council on May 15, 1898, indefinitely postponed a resolution that the salary of the city surveyor “ shall he in full for- all such engineering services that shall be rendered for the city, or any department thereof.” On April 18, 1899, after this work had been fully completed, a similar resolution was adopted. There can be no doubt of the rule that a person accepts, an office with all its burdens, duties, and responsibilities; that he must be content to accept such burdens and perform the duties appertaining to his office for the compensation, provided therefor. Kewaunee Co. v. Knipfer, 37 Wis. 496; Frederick v. Douglas Co. 96 Wis. 411; Quaw v. Paff, 98 Wis. 586. In all of the cases submitted for our consideration, the duties of the office have either been prescribed by law, or the duty of fixing them has been delegated to local authority, which has exercised that power by prescribing and laying out the duties of such officers. It is important to. note in this connection that the charter nowhere prescribes, the duties of the city surveyor, except that sec. 6, subech. Xy of the charter as amended (sec. 14, ch. 195, Laws of 1885), provides that he shall act on the board of sewer assessors; and by sec. 12 the council may allow the assessors, compensation for their services, not exceeding three dollars per day. Sec. 15, before referred to, says that the city surveyor shall be a practical surveyor and engineer, and that “ the' common council shall prescribe the duties and Jka the fee and compensation for cmy service performed by him.” The duty of every other officer named in the charter, except the city' attorney, is fixed by express provision. With relation to. the city surveyor, no duty or obligation is imposed upon him, except in the instance named. It is left entirely with the council to prescribe his duties from time to time, and to fix his fee or compensation therefor. It is argued that sec. 1 of subch. Ill of the charter re — 195 — quires the council to fix the compensation of the surveyor, and not to change it while in office. The section is as follows : “ Sec. Y. The common council shall have power from time to time to require other and further duties to he performed by any officer whose duties are herein prescribed; and to appoint such other officers as may be necessary to carry into effect the provision of this act, and to prescribe their duties, and to fix the compensation of all officers elected or appointed by it, such compensation to be fixed by resolution at the time the office is created, or at the commencement of the year, and shall not be increased or diminished during the time such officer shall remain in office.” This is followed by sec. 15, before referred to. This latter section deals directly with the city surveyor. The council shall prescribe the duties, and fix the fee cmd compensation for any service performed by him. It is within common knowledge that the services required of the city surveyor would necessarily be of a fluctuating character, depending entirely upon exigencies or the circumstance of future city improvements determined upon. His services are not at all necessary or required in the ordinary administration of city affairs. In view of these facts, it would be practically impossible for the council to know beforehand what duties would be required of the surveyor, or what his compensation should be. Hence the legislature saw fit to authorize the council to say in how far his services would be required, and to then fix this fee or compensation “ for any service performed by him.” The fact that they are so empowered renders this section inconsistent with the prior one. As stated by Judge Paine in State ex rel. Lutfring v. Gœtze, 22 Wis. 363, “ There is no rule of construction more reasonable, and none better settled, than that special provisions of a statute in regard to a particular subject will prevail over general provisions in the same or other statutes, so far as there is a conflict.” This is in conformity to subd. 14, sec. — 196 — 4912, Stats. 1898, and subsequent decisions of this court. Hancock v. Merriman, 46 Wis. 159; Hall v. Racine, 81 Wis. 72; State ex rel. Holt L. Co. v. Bellew, 86 Wis. 189; In re Gilbert, 94 Wis. 108. Sec. 15 contains an express delegation of power to prescribe the duties of the surveyor. The courts have no right to intervene unless there has been an unwar ranted or unreasonable exei-cise of that power. The council had the right to say what were and what were not official duties. From the very outset of the agitation for an extensive sewer system, the council has acted upon the assumption that services of the surveyor in that regard were not official services. Whether wisely or not, we need not inquire. Under the circuinstances, that they had the power to so treat them seems quite certain. Until they had determined that they were in fact official duties, conceding that under the charter they had no right to increase his compensation for official services, they were at liberty to contract with him with reference thereto. The compensation mentioned in sec. 7 means compensation for the performance of such duties as the council had prescribed for him to do. The record shows that in conformity to this idea the council from time to time, as ordinances for street improvements were adopted, prescribed the. duties of the surveyor. No such action was ever taken in regard to the building of sewers. On the contrary, the council has again and again determined that such services were not official duties. Its declarations to this effect began with the first step ever taken in the city toward the construction of sewers, and has consistently continued without interruption down to the present time. The council’s action in the execution of the delegated power is as binding as though the legislature had declared the services not to be official. But it is said that these services came within the scope of his official designation. The only qualification prescribed by the charter is that the “ city surveyor ” shall be a “ practical surveyor and engineer.” He may possess these — 197 — qualifications, and yet fall far short of that technical knowledge and skill necessary to originate and carry through so vast and important an undertaking as the one in question. The record shows that this is a distinct branch of engineering service, involving the exercise of knowledge and skill not usually possessed by the ordinary surveyor or engineer. But, whether this be so or not, such services not having been declared ofiicial, hut, on the contrary, having been treated by the council as extra-official, neither the city nor any taxpayer thereof can successfully ask the court to intervene and exercise the power delegated to the council. There are other considerations entering into the decision of this question. Under the general scheme • provided in the charter for a system of sewerage, after the proper preliminary steps have been taken and the council has determined to proceed, it is provided that the council shall direct the city surveyor, or other competent engineers, to make or cause to be made suitable plans, surveys, and specifications of the work. Now, a common test of whether a service is official or not official is whether it may lawfully be performed by another. If these services were official, — ■ imposed by law upon the city surveyor, — it would be doubtful if the city would have any right to employ and pay some other person to perform them (see Frederick v. Douglas Co. 96 Wis. 411), but the right is distinctly given to secure the services of some other competent engineer. Here is a legislative declaration that the services need not necessarily be performed by the surveyor, but may be committed to and performed by another. Another section of the act lays the express duty upon the city surveyor to act on the board of assessors, and still another provides for his compensation for such services. Thus, by two distinct sections a duty is imposed, and provision made for compensation thereof. This seems entirely inconsistent with the contention that under the section of the charter the surveyor’s compensation — 198 — must be fixed at the beginning of bis term, and cannot be changed. Another circumstance is of significance in this connection: Under the charter amendment in 1885 the plan of sewer building was changed, and provision made by which the property benefited might be charged with the expense or some portion of it. With respect to some, if not all, of the items the plaintiff seeks to recover back, the record shows that the same were included in the estimate of the cost of such work, assessed against the property benefited, and paid into the city treasury or to the contractor, so that neither the city nor the taxpayer suing can have any grievance in that respect. It is well settled that, in absence of any prohibition or restriction, the term of office and the compensation of the officer may be changed by the proper authority, and such change will apply to officers then in office as well as to those thereafter selected. State ex rel. Martin v. Kalb, 50 Wis. 178. We concede the rule, in all its amplitude, that a person accepting a public office with a fixed salary is bound to perform the duties of the office for the salary, and that no very nice distinctions should be indulged as to what are and what are not official duties. But the rule nevertheless has its limit. It does not follow that a public officer is bound to perform all manner of public services without compensation, because his office has a salary attached to it. Nor is he, in consequence of holding an office, rendered legally incompetent to discharge duties which are extra-official, outside of his official duties as prescribed. Mechem, Public Officers, § 863; State ex rel. Seattle v. Carson, 6 Wash. 250; U. S. v. Brindle, 110 U. S. 688. See Eagle River v. Oneida Co. 86 Wis. 266. We base this decision squarely upon the propositions that the legislature has delegated to thd council the power to prescribe the duties of the city surveyor, and to fix the fee — 199 — and compensation for any services performed by him, that the council has determined that the services in question are not official services, and that under the peculiar charter provisions 'this was not such an unwarranted exercise of power as to call for the intervention of the courts. Hence it follows that the order of the court below dissolving the injunction was proper, and must be approved. By the Gowrt.— The .order of the circuit court is affirmed.