Opinion
No. 39277.
April 19, 1954.
1. Municipalities — operating under code charter — right of authorities to raise salary — during term of office.
Under facts of the case, governing authorities of Municipality operating under a code charter had lawful authority to raise their salaries during term of office where it was not charged that officers acted in bad faith. Secs. 3374-37, 3415, Code 1942.
Headnote as approved by Gillespie, J.
APPEAL from the chancery court of Simpson County; NEVILLE PATTERSON, Chancellor.
George B. Grubbs, Mendenhall; Satterfield, Ewing, Williams Shell, Jackson, for appellants.
I. The lower court erred in finding that the defendants, who are the appellants in this Court, without lawful authority increased their salaries and drew salaries in excess of amounts to which they were entitled and that they were liable for salaries or funds drawn by them from the treasury of the Town of Mendenhall, and out of the general fund thereof. Caruthers v. Panola County, 205 Miss. 403, 38 So.2d 902; Entrekin v. Tide Water Associated Oil Co., 203 Miss. 767, 35 So.2d 305; Etheridge v. Webb, 210 Miss. 729, 50 So.2d 603; Gresser v. O'Brien, 263 N Y Supp. 68, 146 Misc. 909; Jones v. Seward, 196 Miss. 486, 16 So.2d 619; Knoxville v. Christenberry, 147 Tenn. 286, 247 S.W. 98; McKann v. Town of Irvington, 133 N.J.L. 63, 575, 45 A. 391, 42 A.2d 391; Montgomery v. State, 97 Miss. 292, 52 So. 357; Pace v. Wedgeworth, 198 Miss. 1, 20 So.2d 842; Town of Magee v. Mollett, 178 Miss. 629, 174 So. 246; Town of Waveland v. Dufour, 212 Miss. 884, 56 So.2d 70; Tullos v. Town of Magee, 181 Miss. 288, 179 So. 557; Secs. 3415, 3374-37, 3374-114, Code 1942; 37 Am. Jur., Municipal Corporations, Sec. 257 p. 881; 62 C.J.S., Municipal Corporations, Secs. 526(b), 536(b), 537(a) pp. 983, 986, 987; Vol. II Revised, McQuillan on Municipal Corporations (2d ed.), Secs. 535, 547 pp. 303, 306, 345.
II. The lower court erred in finding that the opinion rendered by the Attorney General was manifestly wrong and without any substantial support and did not relieve the defendants, who are appellants in this Court, from liability for salaries or funds withdrawn by them from the treasury of the Town of Mendenhall, and out of the general fund thereof. Sec. 3834, Code 1942.
III. The lower court erred in not permitting the witness Alexander, one of the appellants in this Court, to testify as to good faith of the municipal authorities.
IV. The lower court's decree is not responsive to the pleadings and proof. Sec. 3374-49, Code 1942; Griffith's Miss. Chancery Practice, Sec. 612 pp. 653-4.
V. The lower court erred in decreeing estoppel against the appellants. Barron v. Federal Land Bank of N.O., 182 Miss. 50, 180 So. 74; Brown v. Pittman, 211 Miss. 344, 51 So.2d 732; Dorby Lumber Co. v. Hill, 209 Miss. 816, 48 So.2d 484; Peeler v. Hutson, 202 Miss. 837, 32 So.2d 785; Griffith's Miss. Chancery Practice, pp. 653-4.
J.P. Edwards, Mendenhall; W.W. Pierce, Jackson, for appellees.
I. The Mayor and Board of Aldermen of a municipality operating under a Code charter have no authority to raise the salaries of such municipal officers after their salaries were once fixed, and such officers entered upon their term of office and accepted the amount of the salaries so fixed for the first year of their term. Alabama V.R.R. Co. v. Turner, 95 Miss. 594; Chinn v. City of Biloxi, 183 Miss. 27, 183 So. 375; Cochnower v. United States, 248 U.S. 405, 63 L.Ed. 328; Crittenden v. Booneville, 92 Miss. 277, 45 So. 723; Culberson v. Watkins, 156 Ga. 185; Davenport v. Blackmur, 184 Miss. 836, 186 So. 321; Hazlehurst v. Mayes, 96 Miss. 656, 51 So. 890; Hendricks v. Bd. of Supervisors Lowndes County, 49 Miss. 615; Knight v. Johns, 161 Miss. 519, 137 So. 509; Monroe County v. Strong, 78 Miss. 565, 29 So. 530; Moore v. Walley, 152 Miss. 539, 120 So. 197; Seward v. City of Jackson, 165 Miss. 478, 144 So. 686; Steitenroth v. Jackson, 99 Miss. 354, 54 So. 955; Wise v. Yazoo City, 96 Miss. 507, 51 So. 453; Sec. 80, Constitution 1890; Sec. 3834, Code 1942; Chap. 491 Sec. 37, Laws 1950.
Mendenhall is a Code Charter municipality of the Town class. Appellants were elected Mayor and Aldermen in 1950 to serve a two-year term beginning the first Monday in January, 1950. When they took office the monthly salaries, as fixed by a previous administration, were $50.00 for the mayor and $5.00 for the aldermen. Appellants drew these salaries during 1951. In January, 1952 appellants adopted an ordinance raising the mayor's salary to $220.00 per month and the aldermen to $10.00 per month. These higher salaries were paid appellants from the general funds of the town until the end of their term.
The appellees, taxpayers of the town, filed suit to recover for the town the aggregate amount of these salary raises. The chancellor held that appellants, as mayor and aldermen, were without lawful authority to raise their own salaries during their term of office, and rendered judgment against appellants, jointly and severally.
(Hn 1) The question for our decision is: Do the governing authorities of a code charter municipality have lawful authority to raise their own salaries during their term? We find no constitutional or statutory provision prohibiting such officers from raising their own salaries. But such municipality has no power except those delegated to it by the state. Hazlehurst v. Mayes, 96 Miss. 656, 51 So. 890. And charter powers of a municipality are to be construed most strongly against a right claimed by it and not clearly given by the statute. Crittenden v. Booneville, 92 Miss. 277, 45 So. 723.
Section 3415 of the Code of 1942, a part of the chapter on general powers of municipalities, granted the power to "fix the compensation of all officers and employees." This statute appeared first in the Code of 1892 and was brought forward in subsequent codes until the legislature rewrote the municipal laws in 1950. This power "to fix the compensation of all officers and employees" was brought forward as a part of Section 37, Chapter 491, Laws of 1950, and now appears as Section 3374-37, a part of the Code chapter granting certain powers to the governing authorities. The context would indicate that the last mentioned statute concerns appointive officers only, but its history, and the fact that no other statute provides for salaries for the governing authorities of municipalities operating under Code charter, leads to the conclusion that the legislature intended the salary provisions to apply to the mayor and aldermen. No restrictions are placed on the power thus granted.
The legislature, in rewriting the municipal code, and as a part of the powers of all municipalities, enacted Section 114, Chapter 491, Laws of 1950, now Section 3374-114 of the Code as amended, as follows:
"3374-114. Powers of governing authorities. — The governing authorities of every municipality of this State shall have the care, management and control of the municipal affairs and its property and finances, and shall have the power to enact ordinances for the purposes provided by law, where same are not repugnant to the laws of the state, and shall likewise have the power to alter, modify and repeal such ordinances."
This statute has appeared in every code since 1892. When this statute was Section 3316 of the Code of 1906, this Court, in the case of Montgomery v. State, 97 Miss. 292, 52 So. 357, made the following comment thereon:
". . . The mayor and board of aldermen constitute the legislative power of the cities, towns, and villages which they represent, and are vested with full power to pass any and all ordinances which are not repugnant to the laws of the state. This power is expressly given them by Section 3316 of the Code of 1906. By this same section the mayor and board of aldermen are given the full care, management, and control of the property and finances of the city, town, and village which they represent. Under the above section the mayor and board of aldermen are vested with as complete authority over the property and finances of the city as the Legislature is of the property and finances of the state, and they may do all things, consistent with the laws of the state, which they deem necessary to the care of the finances of the city, or to the best interest of the inhabitants, who are the real owners of the funds. . . ."
The legislature has not circumscribed or limited the power of code charter municipalities to fix salaries. But in municipalities operating under the council-manager plan the legislature has limited such salaries. Section 13, Chapter 372, Laws of 1952, Code Section 3825.5-21. And as to municipalities operating under a commission form of government, certain restrictions have been placed on salaries of the mayor and councilmen, and such salaries must be approved by the electors. Section 49, Chapter 491, Laws of 1950, Code Section 3374-49.
It is not charged that appellants acted in bad faith. The mayor devoted his full time to the business of the town after the salary raise. We hold that the governing authorities of municipalities operating under a code charter have lawful authority to raise their salaries during their term of office. This holding, however, is limited to the facts of this case. If the governing authorities had acted in bad faith, or if the salary increase had been an arbitrary or unreasonable one in relation to the resources of the town and the duties of the offices, then the Court would exercise its supervisory power to correct such abuse. But these elements do not appear in this case.
In view of our holding on the question discussed herein, it is unnecessary to consider the other questions raised by this appeal.
Reversed and judgment here for appellants.
Roberds, P.J., and Hall, Lee and Ethridge, JJ., concur.