Rice v. National City

HAYNES, C.

—The plaintiffs, taxpayers of National City, brought this action against said city, and Samuel W. Smith

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as city marshal, and also against the city clerk and treasurer, to enjoin them from paying said city marshal the sum of twenty-five dollars per month, that being the salary fixed by a certain ordinance which plaintiffs contend increased the salary of the marshal after his term of office commenced.

The defendants demurred to the complaint for want of facts, and their demurrer having been overruled, declined to answer, and now appeal from the judgment thereupon entered.

Defendant Smith was elected to the office of city marshal at the April election, 1896, for the term of two years, and qualified and entered upon the duties of his office on the 20th of that month, the monthly salary of the city marshal being then fixed by ordinance at forty dollars per month. On March 16, 1898, shortly before the expiration of his term of office, the board of trustees passed a new ordinance, in which it -was provided that the city marshal should receive sixty dollars per year, payable in monthly installments of five dollars each, and also one dollar for each dog impounded under the authority of the ordinances of said city, and in case the dog was redeemed under the provisions of the ordinance, as well as under certain other circumstances mentioned in the ordinance, he should receive $1.50 per dog.

At the regular election held April 11, 1898, defendant Smith was again elected city marshal for the term of two years, commencing on April 20, 1898, and was duly declared elected, and notified by the city clerk of his election. It is further alleged that defendant Smith failed, refused, and neglécted to file his bond and take the oath of office and to qualify under his said election, aüd “ that a vacancy in said office was thereby created, and said office thereupon became vacant, but the said defendant held over until his successor was elected and qualified, and that said defendant did so voluntarily hold over and act as city marshal and to fill said vacancy created by his refusal to qualify.” It is further alleged that on June 21, 1898, the board of trustees adopted a new ordinance (No. 140), “attempting to amend said ordinance No. 138, by which [new ordinance] the salary and compensation of the marshal of said city was raised and increased from the sum of five dollars per month to twenty-five dollars per month.” It is further alleged that on July 13, 1898, “the board of trustees of said city filled the vacancy so' created, by electing and appointing said defendant to said office, and that afterwards,