Woods v. Potter

California Court of Appeal Apr 3, 1908 No. Civ. No. 467.Published

Before: Taggart

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Holding. The court held that a city council member is not entitled to a salary where the city charter does not expressly authorize such compensation, as the power to fix salaries for other employees does not extend to creating compensation for the council itself. Furthermore, the court held that even if such power existed, the ordinance would be invalid as it was enacted to benefit the council members themselves, violating principles of public trust.

Issues

Whether the San Diego city charter grants the common council the power to fix its own salary.
Whether a city council member is entitled to compensation in the absence of express charter authorization.
Whether the ordinance in question violates the constitutional prohibition against increasing an officer's compensation during their term.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Our conclusion in this regard rests upon the fact that it nowhere appears that the charter makers intended that the members of the common council should be compensated for their services.”

“Members of city councils occupy a position of trust, and are bound to the same measure of good faith toward their constituents that a trustee is to his cestui que trust.”

Synopsis

Municipal Charter op San Diego—Members op Common Council not Entitled to Compensation.—Under the municipal charter of the city of San Diego, the members of the common council are not entitled to receive any compensation; and an ordinance passed by them over the mayor’s veto purporting to vote salaries to themselves is ineffective.

Id.—Presumption prom Silence op Charter—Contemporaneous Construction.—The presumption arising from the silence of the charter as to compensation of members of the council is strengthened by the rule of contemporaneous construction, and the presumption from eighteen years’ acquiescence that it was not intended by the makers of the charter that the members of the common council should have any compensation for services.

Id.—Trust Position op Members op Council.—The members of the council occupy a trust position under the charter, and cannot claim compensation not allowed by the charter nor by any legislative act.

Id.—Reduction op Membership.—An amendment of the charter reducing the number of the members of the council from twenty-seven to nine members, without any change in the provision of the charter on the subject of compensation of such members, cannot affect the intention of the makers of the charter on that subject as originally expressed therein.

Id.—Writ of Mandate not Allowable—Change of Compensation During Office—Claim not Presented—Cause of Action not Stated.—A writ of mandate cannot be allowed to enforce compensation allowed during a term of office of members of the council which did not before exist; and the petition therefor does not state a cause of action upon a claim for such compensation not established by the terms of the charter, against the county auditor, where no claim therefor is shown to have been first presented to the auditing committee and passed upon by them, as required by the charter.

TAGGART, J.

Appeal from a judgment denying a writ of mandate to compel the issuance of a salary warrant.

Defendant is auditor of the city of San Diego, and plaintiff was elected a member of the common council of that city at an election held April 2, 1907, the term of his office to commence May 6, 1907. The claim of plaintiff to salary is based upon Ordinance No. 2814 of the city of San Diego, passed and adopted by the common council by a two-thirds vote after its disapproval by the mayor of the city. The ordinance was originally passed February 25th, disapproved by the mayor March 7th, and adopted by a two-thirds vote of the council on April 3, 1907, one day after the election of plaintiff, and by its terms was to take effect and be in force from and after May 6, 1907.

The freeholders’ charter under which the city of San Diego is organized took effect the first Monday in May, 1889 (Stats. 1889, pp. 643-729). It contains provisions relating to the compensation of all the charter officers of the city, except, the members of the common council, as to whom the charter is silent. Ten officers are given fixed annual salaries, the salaries of two and the deputies of one are to be fixed by the common council, and the members of five boards are to serve without compensation.

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The right to create the salary in question is assumed to depend upon an exercise of a power vested in the common council by either one or both of two clauses of the charter, to wit: Subdivision 38 of section 1 of chapter II of article II, which reads: “To make rules and regulations for the government of all servants, employees, officers, and departments, and to fix the fees and charges for all official services, and to fix salaries and wages not otherwise provided by general laws or by this charter”; or a clause in section 1, chapter IX of article III, which reads: “The annual salaries of the officers and the compensation of the employees of the city shall be as follows: [Salary for mayor and other officers as to whom the amount to be received is fixed.] And all other officers and employees as may be fixed by the Common Council, and all salaries shall be payable monthly.”

The petition alleges that prior to the passage of Ordinance No. 2814 (from 1889 to 1907) “there has been no exercise of power by the Common Council, of said city, for or against providing, fixing or establishing any salary, or compensation, for members of said Common Council.”, From this allegation it clearly appears that prior to the passage of Ordinance No. 2814 there was not only no salary fixed which could be increased, but there was no salary or compensation attached to the office at all. The presumption arising from the absence of express authorization of compensation by the charter is strengthened by the rule of contemporaneous construction, and, the presumption from eighteen years’ acquiescence, that it was not intended by the makers of the charter that the members of the common council should have any compensation for services. It further appears that, in 1905, by an amendment of the charter the number of members of the council was changed from twenty-seven to nine, but no change was made in the provisions of the charter relating to official salaries. This failure is significant, as this omission should have been supplied by an amendment to the charter. The propriety of this is apparent, when it is observed that the general clause under which the present ordinance is justified places the authority to create and fix such salaries in the hands of that body itself. The intention of the makers of the charter, as expressed by the original charter, cannot be affected by the mere reduction in the number of members of the council by the amendment of 1905.

Woods v. Potter

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Synopsis

TAGGART, J.

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