Wolcott v. Mayor & Council of Wilmington

(after stating the facts as above). The sole question here raised by the demurrer is whether the Council had authority to pass the ordinance which it purported to adopt on May 15, 1914, respecting the salary, or compensation, to the members of the Board of Assessment, Revision and Appeals. No question was raised as to the jurisdiction of the court," or as to the character of the procedure by an information by the Attorney General in the nature of a bill for an injunction.

*389Passing by the points made as to constitutional provisions said to have been violated, the validity of the ordinance will be tested by considering the statutes referred to in the preceding statement of facts. As shown by the preamble to it, the ordinance of May 15, 1914, was passed to provide “extra compensation” to members of the Board for their “unusual and extra duties in connection with the revision of the assessment for the year 1914,” and it gave to them in addition to their salaries a sum of money “for the year 1914 only.” The method of doing this was by entitling the ordinance as one to amend the ordinance defining the salaries of the officers of the city. But obviously the form is immaterial, if the thing to be done be unlawful. The ordinance cannot establish its own validity by giving an inappropriate name to the subject-matter of it. Authority to pass the ordinance is disclosed in a preamble to it to be the Act of 1907. Two questions arise: (1) Did the authority exist before the passage of that Act? (2) Did that Act give the authority?

1. It is clear that prior to the Act of 1907 (24 Del. Laws, c. 177, §15, p. 351), the power of Council to augment the salary of any officer for or during the period for which he shall have been elected or appointed was expressly denied, and every officer whose _salary was fixed by the charter was expressly prohibited from receiving any fees, or emoluments in addition to his salary. Both of these provisions unquestionably apply to the members of the Board, and there was no pretense that they were called outside the city limits in performance of the service for which this extra compensation was granted. Therefore, whether this extra sum be called salary, or extra compensation, it was equally within the prohibition of the charter binding on the Council and the members of the Board. If it be considered a salary, it was an attempt to augment the salary of each member of the Board during the term for which he was elected. If it be compensation for extra work, it is a fee, or emolument. The Council is prohibited from making such increase of salary and the officer from receiving the emolument.

It is clear, however, that the money voted to the Board was not a salary. By any reasonably accurate definition a *390salary is compensation fixed for official services to be rendered and not extra compensation for extra and unusual services made after such services had been rendered. These extra and unusual duties were imposed by the law of 1913 not on the members of the Board, but on the Board, and the members of it then had fixed salaries “for their services,” meaning all of their services. Therefore, -it cannot be contended that new duties were imposed on unsalaried officers. They were at liberty to resign their offices if they were unwilling to render ■the unusual and new duties, unless paid more than their then salaries for such work. Furthermore, each of the members of the Board to whom the donation was made became members thereof after the passage of the Act of 1913 by which these unusual and extra duties involving a great amount of work were imposed on the Board, and so they had notice thereof when they accepted office. Furthermore, if a salary, it would have been made payable in monthly installments, as required by the charter respecting salaries of all city officers, and not in a lump sum, as the ordinance in question did. Beside all this, the ordinance treats it bol'dly and unmistakably as extra compensation for extra services in addition to the charter salary, and it was. for one year only.

Therefore, unless it be authorized by the Act of 1907, the ordinance was invalid.

2. By the preamble to the ordinance, authority to enact it is claimed under the Act of 1907. The solicitor for the relator objecting to the ordinance urged, with some show of reason, that the above-quoted “third” provision of that Act refers to the officers and employes of the four departments referred to in that Act, which was intended to transfer from these departments to the general treasury the revenues theretofore received by these several departments. It was said that there were certain officers employed by these departments and after that Act they were to be paid by the Council, so that power was given by the quoted section of the Act of 1907 to Council to fix the salaries of these department officers, their salaries having theretofore been fixed by the department employing them. But, however this may be, this Act of 1907 did not *391expressly, or by implication, repeal, or limit, or change, the provisions of section 47 of the charter prohibiting augmentation of salaries and the receipt of any fee or emolument in addition to the salary fixed by law. This is so obvious that it needs no enlargement of reasoning. In addition to this, by this same Act of 1907, a new power is given to the Council to increase the salaries of the Treasurer’s clerk, the Auditor’s clerk and the Assistant City Solicitor “at any time.” By reasonable inference, then, the prohibition against the increase of saliaries of any other officer during his term is retained in full force for if repealed, or changed, by the Act of 1907, then it was not necessary to make the special provision as to the Assistant City Solicitor, the clerk of the Treasurer and of the Auditor. Furthermore, even if the Council could by virtue of the Act of 1907 augment or decrease the salary of an officer during his term, the prohibition against receiving fees and emoluments in addition to the salary remained clearly unaffected and in full force as a legal barrier to a donation to a salaried officer.

Attention was called by the solicitor for the demurring defendants to the fact that soon after the Act of 1907 was passed, ordinances were adopted by the Council fixing salaries of certain officers, and it was urged that this was an interpretation of legislative intent manifested 'contemporaneously with the newr legislation. That fact proves nothing. It does not appear that the ordinance either augmented or decreased salaries during the term for which those officers were elected or appointed, and if they did and were for that reason unlawful, these unlawful acts do not justify other unlawful acts.

The conclusion is inevitable, then, that the Council had no power to pass the ordinance in question. It was an attempt either to increase the salary of officers during their terms of office, or to give them a fee or emolument by voting them compensation for extra services rendered by them in the performance of duties imposed by law in force when they took office. Viewed in either way the Council and the members of the Board were prohibited from doing the thing attempted to be done by the ordinance.

It is, of course, foreign to the question, that the members *392of the Board rendered a valuable service and performed great labor in making the assessment of the year 1914, and were entitled not only to commendation therefor, but also to a substantial pecuniary reward. The question is one of law and not of abstract justice, and the ordinance is to be judged by the statutes of the State, which bind the court, as well as the city and its officers.

The demurrer will be overruled; but the overruling of the demurrer does not entitle the complainant to any affirmative relief, because the demurrer admits the well-pleaded allegations of the bill only for the purpose of the argument. The appropriate order upon overruling a demurrer, then, is to require the defendant to plead or answer within a reasonable time to be fixed in the order, and the cause will hereafter proceed as other causes.