Myers v. City of Calipatria

MUNDO, J., pro tem. The plaintiff had been serving the City of Calipatria as its elected city clerk at a salary fixed by ordinance in the sum of $100 per month. By the same ordinance the salary of its deputy city clerk was fixed at $80 per month, the salary of its city attorney at $75 per month, and the salary of the deputy tax collector at $75 per month.

On April 19, 1928, while the plaintiff was so serving as city clerk, the following minute order was made and entered by the city council of defendant city: “On motion of Councilman Montgomery, seconded by Councilman Gullet, and carried, P. N. Myers was appointed to the office of city attorney, to take effect May 1st, 1928, he to be paid the [297]compensation fixed by ordinance, viz.: '$75.00 per month, but with the reservation that the city shall be at no further expense for a deputy city clerk as long as said appointment shall remain in force.” On the same day plaintiff was also appointed deputy tax collector. He served in all three capacities until October 5, 1929.

During the period from Slay 1, 1928, to October 5, 1929, plaintiff ajipointed certain deputy clerks whose total amount of earned salary was the sum of $1,025, which he alleges he paid out of his own money for the use and benefit of the city.

On July 14, 1931, almost two years after plaintiff had left the employ of the city, a claim for the money so paid was presented to and rejected by the city council. This action was then brought to recover the sum so paid. The defendant demurred to the second amended complaint generally and specially, which demurrer was by the court sustained without leave to amend, and judgment of dismissal was entered in favor of the defendant. Upon this appeal, taken b3r the plaintiff, the question involved is: Does the appointment of a city attorney by the city council of a city of the sixth class, subject to a reservation that the city shall be to no further expense for a deputy clerk as long as said appointment shall remain in force, authorize the city attorney, so appointed, to pay the salaries of deputy clerks, and, thereafter, collect the same from the cit3r?

Plaintiff contends that: 1. The effect of the minute order was to compel him to pay the salaries of the deputy clerks or be deprived of his appointive offices. 2. If an officer accepts an office, the compensation of which it has- been attempted illegally to reduce, and receives the compensation at a reduced rate, he is not estopped from claiming the balance as fixed by law. 3. The amount of compensation as fixed by law may not be changed by agreement, and any agreement attempted to be made which provides for compensation different from that fixed by law is void as against public policy.