Lee v. City of Venice

Mr. Justice Higbee delivered the opinion of the court. In April, 1911, J. E. Lee, appellant, was elected mayor of the City of Venice for the term expiring May, 1913, at which time he was re-elected, his second term expiring May, 1915. During his first term of office his salary as mayor was fixed by ordinance at $250 per annum and during his second term at $600 per year. During the entire time he held the office and prior thereto there was in force in said city an ordinance creating a board of local improvements, providing that the mayor and certain aldermen constitute such board and that the mayor by virtue of his office be the president of such board. This ordinance made no provision for salary or compensation to be paid the mayor, as president of the board, or any member thereof. Several local' improvements were started and completed during the four years appellant served as such mayor and he devoted considerable of his.time to that work. On April 18, 1913, before appellant’s first term of office had expired, the city council passed the following resolution, which was adopted and made a matter of record: “Moved by Huckaby, seconded by Bayers, that the aldermen be paid the sum of three dollars ($3.00) for each meeting of the board of local improvements attended by them, and the president of the board be allowed the sum of twenty-five dollars ($25.00) per month, while the improvements are in progress.” On April 22, 1913, a voucher for $450 signed by the city clerk and countersigned by the mayor was presented by appellant to the city treasurer of -the City of Venice and paid by him out of the general funds of the city. This was for compensation to appellant for his services as president of the board of local improvements during the eighteen months of his first term that such improvements were in progress, as provided by • above resolution. During his second term as mayor, appellant drew $250 in the same manner from the general fund of the city for like services rendered during that period. This suit is an action in assumpsit by the city to recover the $700 received by appellant for his compensation as president of the board of local improvements. The case was tried before the court without a jury and judgment for $700 was rendered in favor of the dty. The City of Venice is incorporated under the general city, town and village act of Illinois. Appellant’s salary as mayor had been fixed by ordinance at $250 per annum prior to the time he was elected and installed in 1911, and at $600 per annum prior to his election and installation in 1913. The City of Venice having a population of less than 50,000, the mayor is, by virtue of his office, president of the board of local improvements, independent of any ordinance. (Chapter 24, sec. 6, p. 463, Hurd’s Rev. St. 1916, Cal. Ill. St. Supp. 1916, 1393.) The duties imposed on appellant as president of such board were simply additional duties given to the mayor to perform and were part of the duties of that office. Appellant was entitled to his salary as mayor but was not entitled to additional compensation as president or member of the board of local improvements. His salary as mayor .was the only compensation for his services on said board which could legally be allowed him. Northwestern University v. Village of Wilmette, 230 Ill. 80. It is provided by section 11, art. IX of our State Constitution that: “The fees, salary or compensation of no municipal officer who is elected or appointed for a definite term of office shall be increased or diminished during such term.” Section 13, art. VI, ch. 24, Rev. St. (J. & A. ¶ 1356) provides that the compensation of the mayor of any city shall not be changed during his term of office. An ordinance increasing the salary of a mayor during his term of office was held invalid in Stadler v. Fahey, 87 Ill. App. 411. The salary of a city officer cannot be changed during his term of office even though the compensation provided may as a matter of fact be inadequate. Gathemann v. City of Chicago, 263 Ill. 293; City of Chicago v. Wolf, 221 Ill. 131. Neither does the imposition of additional duties upon an officer authorize an increase in his compensation during the term for which he is elected. Fergus v. Russel, 270 Ill. 626, and authorities there cited. The increase given appellant must also be held illegal for another reason. Section 13, art. VI, ch. 24, Rev. St. (J. & A. ¶ 1356) provides, that the mayor of a city shall receive such compensation as the city council may by ordinance direct. The additional salary in question was not fixed by ordinance but by a resolution. Where the law or the charter of a city requires an act to be done by ordinance, a resolution is not sufficient, but an ordinance is necessary. Chicago & N. P. R. Co. v. City of Chicago, 174 Ill. 439; Village of Altamont v. Baltimore & O. S. W. Ry. Co., 184 Ill. 47. Even if this additional salary could have been legally allowed appellant, it would have had to be fixed by an ordinance and not by resolution. Counsel for appellant contends the additional compensation, even if illegal, cannot be recovered by the city assigning as a reason therefor, that by the ordinance providing for the improvements six per cent, was added to the assessments and collected from the property owners, for the payment of “all lawful expenses, court costs, etc., connected with said improvements,” and that the $700 paid appellant belongs to that six per cent, fund, is the property of the taxpayers, and is recoverable only by them, if by any one. If the $700 had been paid out of that six per cent, assessment, it might be that the city could not recover it, but the stipulation of facts filed in this case shows that this money was paid appellant on two city warrants, drawn against the city treasury, and was paid out of the general funds of the City of Venice. It therefore belongs to the city, and the city has the right to maintain this suit. ¡The judgment of the trial court is affirmed. Affirmed.