Opinion
No. 33298.
September 26, 1938.
1. MUNICIPAL CORPORATIONS.
A clerk in the tax collector's office of the city of Biloxi was not entitled to compensation for extra services rendered pursuant to an alleged oral agreement between the mayor and a councilman that either of them might employ additional help in their respective departments, in absence of a contract for such extra services entered on the minutes or showing that payments were approved and allowed by an order of the city council.
2. MUNICIPAL CORPORATIONS.
An ordinance, in its ordinary sense, must be published and thereafter enrolled in the ordinance book, to be effective.
3. MUNICIPAL CORPORATIONS.
Under statute providing that the mayor and commissioners of a municipality may reduce their salaries by an "ordinance" without an election, an "order" entered on minutes of city council reducing compensation of mayor and councilmen was sufficient "ordinance" within statute and, when followed by acceptance of warrants for reduced amount, was sufficient to effectuate a reduction of salaries.
4. MUNICIPAL CORPORATIONS.
Mayor and councilman who paid themselves salaries in unreduced amounts after an order, entered on the minutes of the city council, reducing compensation of mayor and councilmen followed by acceptance of warrants for reduced amounts, had effectuated a reduction in salaries, became liable to the city for the excess received by them over that fixed by the order (Laws 1932, chapter 224).
5. MUNICIPAL CORPORATIONS.
In suit by city against mayor, a councilman, and clerk in office of the councilman as tax collector, to recover money received by defendants on warrants signed by mayor for amounts allegedly in excess of that to which defendants were entitled, and against surety on the mayor's official bond, where the mayor and the surety were jointly and severally liable together with the councilman and clerk for the illegal payments made to them, city was not required to join the sureties on the official bonds of the councilman and clerk as parties defendant.
APPEAL from the chancery court of Harrison county; HON. D.M. RUSSELL, Chancellor.
Doty Doty, of Biloxi, for appellants, M.L. Michel and Laura V. Lawrence.
In 1931, when the first reduction in salary was made, the appellants were governed by Section 2634 of the Mississippi Code of 1930, which provided that salaries of said Mayor and Commissioners could not be reduced during their term of office, and as held by our Supreme Court in the case of Lewis v. Jane, 129 Miss. 475, any reduction would be null and void. While the court was not called upon to decide the identical point, in the Lewis v. Jane case, Justice ETHRIDGE held such salary could not be changed.
22 R.C.L. 538, sec. 235; Bodenhofer v. Hogan, 142 Ia. 321, 120 N.W. 659, 134 A.S.R. 418, 19 Ann. Cas. 1073.
In Sec. 692, at page 1643 of Abbott's work on Municipal Corporations, under "Change of Compensation During Term," it is said: "The rule holding in respect to a change in compensation, it follows that when the official or employee takes for a time the reduced compensation this does not estop him from claiming the residue."
Purdy v. City of Independence, 75 Iowa 356, 39 N.W. 641; Bowe v. City of St. Paul, 70 Minn. 341, 73 N.W. 184; Kohn v. State, 93 N.Y. 291; Montagues, etc. v. Massay, 76 Va. 307; Neal v. Allen, 76 Va. 437.
Estoppel must be properly plead; this the appellee did not do. It can never apply in a case like the one at bar, and we challenge the appellee to cite any authority contrary to this statement.
The city had a right to employ Miss Lawrence to work extra hours, and she was the proper one to employ. The present city officials have no right to question the acts as to employment of their predecessors in office.
On July 5, 1932, the Mayor and Commissioners of the City of Biloxi passed a resolution by which they attempted to reduce their salaries from $247.50 to $200 per month. As we argued on the hearing of our special plea in bar to the action instituted against the appellants, M.L. Michel and Laura V. Lawrence, by the City of Biloxi, it was necessary for the salaries of the Mayor and Commissioners of the City of Biloxi to be reduced "by an ordinance entered on the minutes of the municipality," and such reduction, so as to preclude said Mayor and Commissioners from collecting their full salaries under the 1927 ordinance, could be effected in no other way.
The law is well settled, we believe, that when an enabling act, such as Chapter 224 of the Laws of 1932, specifically and positively provides how a thing is to be done or a result accomplished, it can be done or accomplished in that way, and only that way.
56 N.E. 340; 28 Cyc. 459; Hisey v. Charleston, 62 Mo. App. 381; 76 S.E. 142, 126 Fed. 29.
We contend that Sec. 1, Par. 2 of Chapter 224 of the Laws of 1932, violates Sec. 90 of the Constitution of Mississippi of 1890, and that it is, therefore, of no legal force and effect, but null and void.
In Couchnower v. U.S., 248 U.S. 405, 38 S.Ct. 137, 63 U.S. (L.Ed.) 328, it is held that the right to decrease salary is not within the power to `increase and fix' compensation of public officers.
22 R.C.L., sec. 227; Culvertson v. Watkins, 156 Ga. 185, 119 S.E. 319; State v. Carter, 21 P. 477, 28 A.L.R. 1089, 31 A.L.R. 1310; Pitsch v. Continental Commercial Nat'l Bank of Chicago, 305 Ill. 263, 137 N.E. 198, 25 A.L.R. 164.
In 28 Cyc., pages 458, 459, it is held: "In the absence of express provision of law, the compensation of municipal officers may be diminished from time to time during the continuance of their term of office by the authority which fixed it. But when such provision of law exists, the compensation of the officer fixed by law cannot be diminished during the term of office directly, by express ordinance, or contract, or indirectly, by diminution or entire cessation of the duties of the office."
Marguis v. Santa Ana, 103 Cal. 661, 37 P. 650; Chicago v. Wolf, 221 Ill. 130, 77 N.E. 414; Purdy v. Independence, 75 Iowa 356, 39 N.W. 641.
Leathers, Wallace Graves, of Gulfport, and F.W. Elmer, Jr., of Biloxi, for appellants, St. Paul Mercury Indemnity Company and R. Hart Chinn.
It is the first contention of the appellants, R. Hart Chinn and St. Paul Mercury Indemnity Company, that the lower court committed reversible error in overruling the plea of nonjoinder filed by the St. Paul Mercury Indemnity Company.
It was and is the contention of the St. Paul Mercury Indemnity Company that the United States Fidelity Guaranty Company was a necessary party defendant in this cause for the reason that any liability which the said M.L. Michel, as principal in the bond, might be under to the City of Biloxi on account of any of the matters and things alleged in the bill of complaint was also a liability of the United States Fidelity Guaranty Company as surety on the bond; and for the further reason that any liability as might exist in favor of the City of Biloxi, if any, because of the matters and things alleged in the bill of complaint, and because of the alleged illegal payments made by Chinn and Michel, as alleged in the bill, would be a joint as well as a several liability; and that if the City of Biloxi should be entitled to a judgment or decree against the defendant Chinn and his surety, and against the defendant Michel, certainly it should be entitled to a decree and judgment against the United States Fidelity Guaranty Company, the surety on the official bond of Michel. The rights of the St. Paul Mercury Indemnity Company, indeed the rights of the City of Biloxi itself, could not be fully determined and adjudicated without the presence of the United States Fidelity Guaranty Company as a party defendant in this cause. It was further alleged on information and belief, in the plea of non-joinder, that Michel, the principal in the bond, was insolvent and could not be made to respond to any judgment or decree of the court that might be rendered against him.
Sec. 108, Griffith's Mississippi Chancery Practice.
We do not understand how it could be contended that the United States Fidelity Guaranty Company, the surety on the official bond of Michel, would not be directly affected by a decree of the court finding that Michel is indebted to and should pay over to the complainant a sum of money. This surety is not only interested in the controversy between the immediate litigants, but it has an interest in the subject matter which may have been conveniently settled in this suit, if, of course, it should be found that Michel owed the complainant anything. Certainly it could not be argued that the bringing in of the United States Fidelity and Guaranty Company as a party defendant would have involved too many defendants or parties to be brought before the court.
Nashville Decatur R.R. Co. v. Orr, 85 U.S. 475, 21 L.Ed. 810; Williams v. Bankhead, 86 U.S. 572, 22 L.Ed. 184.
The learned Chancellor committed reversible error in sustaining motions of the complainant in the court below to strike the answers of the defendants and to overrule the pleas of the defendants.
Chapter 224 of the Laws of 1932 amended Section 2634 of the Mississippi Code of 1930, which amendment provided, insofar as we are now interested, that "where the salary of officers has been fixed as provided for in this law and ratified by an election held for that purpose, the Mayor and Commissioners may reduce their salaries by an ordinance entered on the minutes of the municipality without an election." The court will note that in this amendment the Legislature provided that an election was not necessary in order that the Mayor and Commissioners might legally reduce their salaries. It is further noted that the Legislature was careful to use in this act the word "ordinance," as being the proper form of action to be taken by a Board of Mayor and Commissioners in reducing their salaries.
It is of course admitted that the Board of Mayor and Commissioners, in attempting to reduce their salaries, on July 5, 1932, did not enact an ordinance to effect such reduction, but merely adopted a motion, which latter action the appellee contends was a valid and effectual compliance with Chapter 224, Laws of 1932. As suggested by the Chancellor in his written opinion, it must be admitted that the contention of these appellants, to the effect that the act of 1932 required an ordinance in form and substance to effect a reduction of the salaries, and that a mere motion was ineffectual to accomplish such a result, is correct, and that such a conclusion is justified if a technical construction is to be given the phraseology of the said act of 1932; the act nowhere mentioning or suggesting a resolution or motion as a means of effecting the proposed reduction.
28 Cyc., pages 458 and 459; 43 C.J., page 701, sec. 1169, page 702, sec. 1170.
We cannot at all agree with the learned Chancellor in his statement that the disposition of this case depends upon whether the Supreme Court will adopt a technical interpretation or a liberal interpretation of the term "ordinance" as used in the act of 1932. As we read this statute, there is no room for construction, and the only interpretation possible is that the Legislature intended that an ordinance should be used by a municipality in attempting such a matter of vital and public importance as the reduction in the salaries of its officers.
Pitsch v. Continental Commercial Natl. Bank of Chicago, 25 A.L.R. 164, 305 Ill. 265, 137 N.E. 198; Village of Altamont v. Baltimore O. Ry., 56 S.E. 340; Hulaniski v. Ogden City, 57 P. 876, 20 Utah 233; Ruell v. City of Hepina, 66 N.W. 49; Heil v. Mayor Board of Comrs., of City of Wildwood, 164 A. 868, 11 N.J. Misc. 171; Marquis v. City of Santa Ana, 37 P. 650; Garretson v. Village of Fox Lake, 154 Ill. App. 58; Peterson v. City of Parsons, 33 P.2d 715, 139 Kan. 701; Myers v. City of Calipatria, 35 P.2d 377.
Certainly if the mere motion by which the Mayor and Commissioners attempted to reduce their salaries was an abortive act, and if the ordinance of 1927, fixing the salaries at Two Hundred and Seventy-Five ($275.00) Dollars per month, was the only valid act of the board in the matter of fixing the salaries, it could never be said that these officers were estopped from claiming what was rightfully due them. If the motion of 1932, attempting to diminish the salaries was illegal — and we submit that we have shown that it was illegal — it could not become legal by long continuance or by acquiescence on the part of the officers themselves in accepting the reduced salaries for a number of months. It has been held that one who is entitled to a statutory compensation cannot estop himself by receiving a less amount in full compensation from afterward insisting on full payment.
Bodenhofer v. Hogan, 142 Iowa 321, 120 N.W. 659, 134 A.S.R. 418; Gallaher v. Lincoln, 63 Neb. 339, 88 N.W. 505; Kehn v. New York, 93 N.Y. 291; Pitsch v. Continental Commercial National Bank of Chicago, 305 Ill. 265, 137 N.E. 198, 25 A.L.R. 164; Bowe v. City of St. Paul, 70 Minn. 341, 73 N.W. 184; Ruell v. City of Hepina, 66 N.W. 49; City of Louisville v. Fisher, 79 S.W.2d 345, 258 Ky. 84; Peterson v. City of Parsons, 33 P.2d 715, 139 Kan. 701; City of Louisville v. Thomas, 78 S.W.2d 767, 257 Ky. 540.
Ford Ford, of Pascagoula, for appellee.
It is our contention that while the said United States Fidelity Guaranty Company might have been a proper party to the suit, it was by no means a necessary party. Many reasons might be given as to why this surety was not made a party defendant. Among these is the fact that as shown by the plea itself the other bond was already in suit in another cause then pending in the same court and there is no allegation in the plea that same would not be exhausted in that suit.
Under our statute, Section 2028 of the Mississippi Code of 1930, a party plaintiff or complainant is given the option or privilege of suing any one or more of joint and several debtors and a judgment against one does not affect its rights as against the others.
Horn v. Tartt, 76 Miss. 304; Sec. 2028, Code of 1930; J.B. White's Garage v. Boyd, 149 Miss. 383.
No property rights are involved in this case and we know of no law requiring a suit against a surety merely because the principal is sued.
Shotwell v. Taliaferro, 25 Miss. 105.
No right of the United States Fidelity Guaranty Company could be prejudiced or affected by this suit and the only reason imaginable that they should be made parties is that it might enable the appellant, St. Paul Mercury Indemnity Company, to claim that they should pay the judgment rendered against the appellant, Michel, instead of the appellant. The appellee is not concerned with these questions, as surety on the appellant Chinn's bond the appellant surety is either liable or not liable for the disbursements made by him to the appellant, Michel, as to whether or not another person other than its principal is liable should not be considered in this case.
Security Mutual Life Ins. Co. v. Brunson, 176 Miss. 893.
On the second legal question involved in this case, viz., the effect of the order entered on the minutes of the City of Biloxi reducing the salaries of the Mayor and Councilmen to Two Hundred Dollars per month, we respectfully submit that this order was valid and binding on the appellants, Chinn and Michel. It will be observed that this order was manifestly entered by the Board of Mayor and Councilmen in an endeavor to comply with the provisions of Chapter 224 of the Laws of 1932.
It is manifest that the Legislature did not desire to vest in the municipal officers any authority to increase their salaries without going through the formality of an election as had theretofore been required. As shown by the title of the act it was their intention to authorize them to reduce the salary without the formality of an election.
What the Legislature intended was that the Mayor and Commissioners should by an entry on the minutes of an order, resolution or other formal expression, manifest their intentions of reducing their salaries, and this is precisely what was done by the Board of Mayor and Councilmen of the City of Biloxi on July 5, 1932, when the salaries were reduced to Two Hundred Dollars per month by the order entered on the minutes of the city. All members of the board abided by this order for more than two years after its passage.
The question involved in this case is whether or not the order entered on the minute book by the Mayor and Commissioners of the City of Biloxi was a sufficient compliance with Chapter 224 of the Laws of 1932. The Legislature uses the words "order" and "ordinance" interchangeably and on this question we further invite the court's attention to the definitions of the word "ordinance" as set forth in Words and Phrases, 1st Series, Volume 6, page 5026, among which definitions are the following: "`Ordinance' is the generic term for acts of council affecting the affairs of corporations, and a resolution is only a less solemn or less usual form of an ordinance. Fuller v. City of Scranton, 1 Pa. Co. Ct. R. 405, 407."
Kepner v. Commonwealth, 40 Pa. 124; Chandler v. Town of Johnson City, 59 S.W. 142, 105 Tenn. 633; Town of Tipton v. Norman, 72 Mo. 380; People v. Lee, 1 N.E. 471, 112 Ill. 113.
The Supreme Court in construing statutes has always been zealous to ascertain the legislative intent and construe the statute accordingly. And, if necessary in order to carry out the intent, the court will eliminate, add to, or change a word or words of the statute.
Roseberry v. Norsworthy, 135 Miss. 845.
It is our contention that the facts in this case shown both in the pleadings and the proof demonstrate a clear case where the doctrine of estoppel should apply with its fullest force. It would be monstrous if it were the law that an officer could be a candidate for a position wherein the salary was considered at Two Hundred Dollars per month, be elected and draw this salary over a long period of time, and then without any notice to the public or the other members of the board claim and pay to himself large sums of money to make up a difference in what the salary was thought to be and what he claimed it should have been.
Moore v. Walley, 152 Miss. 539; Perkins v. Panola County, 32 So. 316; Wesson v. Collins, 72 Miss. 844; Galbreath v. City of Mobley, 80 Mo. 484; Rau v. City of Little Rock, 34 Ark. 303; City of Paris v. Webb, 33 S.W. 87; McFaul v. City of Austin (Texas), 1 W. W., Civ. Cas. Ct. App., sec. 452; Love v. Mayor and Aldermen of Jersey City, 40 N.J.L. 456.
The rule supported by the weight of authority is that a municipal officer who continues to hold his office for the full term and receives his compensation at a fixed rate, without dissent, thereby waives his right to claim a higher rate named in some other act or ordinance.
43 C.J. 702, sec. 1173; Chandler v. Johnson City, 105 Tenn. 633, 59 S.W. 142; Milan v. Paxton, 160 Miss. 562; Powell-Sanders Co. v. Carssow, 28 Idaho 201, 152 P. 1067; 43 C.J. 1246, sec. 255.
We respectfully submit that in view of the fact that the appellants, Chinn and Michel, in themselves constituted a majority of the membership of the Board of Mayor and Councilmen of the City of Biloxi, and, in view of the fact, that the order had been passed reducing the salaries, that it was their duty to either abide by this order or pass an ordinance, if they deemed the same necessary to effectuate the reduction, and that they had no right whatsoever to draw the additional salaries.
The next point is whether or not the appellant, Miss Lawrence, either as clerk or tax collector, could be paid additional sums of money over and above her salary unless an order or contract for the same had been entered on the minutes prior to the rendition of the services. On this question we respectfully submit that it is immaterial as to whether or not this lady was a clerk in the tax collector's office or the official tax collector of the city. In our opinion the same rule of law applies absolutely. Section 96 of the Constitution of 1890 forbids any additional compensation to be paid to any public official or servant after rendition of the service. It is undisputed that the salary of Miss Lawrence, whether as tax collector or as a clerk, had been fixed at One Hundred Dollars per month. The additional amounts which were paid to her are also undisputed. She claims it was for extra services. There is nothing on the minutes of the City of Biloxi authorizing this extra service or agreeing to compensate her for same.
Clark v. Miller, 142 Miss. 123.
It is conceded in this case that no ordinance was adopted or other entry made on the minutes agreeing that extra compensation would be paid by the board, and moreover not even an order allowing the warrants was entered either before or after their issuance.
Hendricks v. Lowndes County, 49 Miss. 612; Patty v. Sparkman, 58 Miss. 76; Magee v. Town of Osyka, 45 So. 837; Marion County v. Woulard, 77 Miss. 343; Bridges v. Board of Supervisors, 58 Miss. 817; Beverly v. City of Hattiesburg, 83 Miss. 342; Town of Woodville v. Jenks, 104 Miss. 184.
It is contended by the appellant, Miss Lawrence, that she was employed by Mr. Michel to do this extra work. It is conceded that Michel's authority to do this rested solely on an oral agreement among the commissioners. Manifestly any oral agreement is unauthorized and uncolorable in view of the provisions of Section 2902 of the Code of 1930, which provides "an officer shall not enter into any contract on behalf of the state or any county, city, town or village thereof, without being specifically authorized thereto by law, or by an order of the board of supervisors or municipal authorities." There is no law authorizing a commissioner to employ extra help and in this case there was no order of the municipal authorities authorizing same for it is fundamental that such a board can speak only through its minutes.
Kidder v. McClanahan, 126 Miss. 179.
It is alleged in the bill of complaint and is not denied in any of the answers that no order was entered on the minutes of the City of Biloxi allowing any of the payments or directing the issuance of any of the warrants, the proceeds of which are now sought to be recovered. The answers of the appellants do not controvert these allegations but merely allege that no such order was necessary. We respectfully submit that unless the provisions of Sections 2539 and 2540 are to be completely ignored that the entry on the minutes of an order allowing the claim or directing the issuance of the warrant is absolutely mandatory before the claim can be validly paid or the warrant legally issued.
Unless these mandatory provisions of the statute are completely ignored it cannot be said that these warrants were properly issued and that an order on the minutes directing their issuance is not necessary.
The warrants were signed by the appellant, Chinn, in accordance with Section 2515 of the Code of 1930, which requires the mayor to sign all warrants drawn on the municipal treasury. Under the provisions of Section 2915 of the Code of 1930, any public officer who unlawfully pays to himself or knowingly and designedly pays to any other person not entitled thereto without allowance regularly made by the proper authority any public funds, shall be liable on his official bond for all cost of recovery, etc.
Under Section 2903 of the Code of 1930, the bond of any public officer, county, district or municipal, is made liable for any violation of the official obligations of an officer.
Brown v. Reeves, 129 Miss. 755; Howe v. State, 53 Miss. 57; 28 Cyc., page 469, sub-section J, page 475, sub-section E, page 1562, par. C; 19 R.C.L., page 928, par. 229; 22 R.C.L., page 507, par. 191, and page 463, par. 128.
Argued orally by P.D. Greaves, for appellant, and by J.I. Ford, for appellee.
The appellee, City of Biloxi, Mississippi, which operates under the commission form of government, brought this suit in the chancery court of Harrison County to recover certain sums of money alleged to have been received by the appellants, R. Hart Chinn, Mayor of the City of Biloxi, for an unexpired term of office, beginning in August, 1933, and ending on January 6, 1935, and M.L. Michel, a City Councilman, who served during said period as Finance Commissioner, Clerk and Tax Collector, and Miss Laura V. Lawrence, a clerk in the office of said Tax Collector. The bill of complaint alleges that certain sums of money were received by these appellants upon warrants illegally issued, and all of which were signed by the said R. Hart Chinn as Mayor; and the suit is also against the appellant, St. Paul Mercury Indemnity Company of St. Paul, Minnesota, as surety on the official bond of R. Hart Chinn, conditioned for the faithful performance of all and singular the duties of his office. The sureties on the official bonds of the appellants, M.L. Michel and Miss Laura V. Lawrence, were not made parties to the suit. A plea of nonjoinder as to these sureties was filed by the appellant, St. Paul Mercury Indemnity Company, and was by the chancellor overruled. The decree of the court below, in overruling this plea of nonjoinder, and in striking the several answers of the appellants to the bill of complaint, on the ground that they set up no defense thereto, is complained of as error on this interlocutory appeal, which was granted by the chancellor to settle the controlling principles of law involved in the case.
The bill of complaint alleged that the said R. Hart Chinn and the two Councilmen of the City of Biloxi were each entitled to receive as compensation for their official services only the sum of $200 per month from and after July 5, 1932, by order entered on that date on the minutes of the city council; and that at all times during her employment, as clerk in the Tax Collector's Office, the said Miss Laura V. Lawrence was entitled to receive for her services only the sum of $100 per month, as fixed by an order duly entered on the minutes of the said Mayor and Board of Councilmen, but that the said R. Hart Chinn and M.L. Michel paid to themselves the sum of $1,125 and $2,200 respectively, upon warrants signed by the said R. Hart Chinn as Mayor, and to Miss Laura V. Lawrence the sum of $350, in excess of the amount to which they were entitled under the orders appearing on the minutes as hereinbefore mentioned. The answers of all of the appellants admitted the adoption and entry of the orders on the minutes relative to their salaries or compensation, but the answers of the appellants, Chinn and Michel, as well as that of the St. Paul Mercury Indemnity Company, set up as a defense to the right of the City of Biloxi to recover these excess payments made to Chinn and Michel, the fact that an ordinance was duly adopted by the Mayor and Councilmen and approved by the city electors in January, 1927, fixing the salaries of the said Mayor and Councilmen at the sum of $275 per month, and plead the invalidity of the order of July 5, 1932, as an ineffectual attempt to reduce such salaries for the reason that, as they contend, it was provided in Chapter 224 of the Laws of 1932 that where the salaries of such officers have been previously fixed by an ordinance and ratified by an election held for that purpose, the Mayor and Councilmen were given the right to reduce their salaries only by an ordinance entered on the minutes of the municipality. The answer of the appellant, Miss Laura V. Lawrence, admitted payment to her of the $350 in excess of her salary fixed by an order on the minutes of the City Councilmen, but claimed that the same was paid for extra services rendered outside of her regular office hours required as clerk in the Tax Collector's Office. However, it appeared from the proof heard by the chancellor, under the plea and answers, that no contract was entered on the minutes in regard to such extra services. and it was shown that all of the excess payments made to each of the appellants were not approved and allowed by any order of the City Council, but that the same were made by the appellants, Chinn and Michel, without the knowledge and consent of the other Councilman, Mr. Swanzy.
Section 96 of the Constitution of 1890, as construed in Clark v. Miller, 142 Miss. 123, and 105 So. 502, is invoked to show that the allowance for extra compensation of Miss Laura V. Lawrence was unauthorized by law, as being for services rendered after contract made. However, the extra compensation was not paid for services rendered under her contract of employment, but was for services rendered in addition thereto. Nevertheless, the allowance was unlawful under the authority of the cases of Town of Woodville v. Jenks, 104 Miss. 184, 61 So. 172; Kidder v. McClanahan, 126 Miss. 179, 88 So. 508, which expressly hold that in the absence of a contract with or an order of the board providing for the same, an employee of a municipality is not entitled to compensation for extra services. It appears that the extra services were rendered pursuant to an alleged oral agreement between the Mayor and Councilman to the effect that either of them might employ additional help in their respective departments.
The liability of the appellants, Chinn and Michel, as well as that of the surety company here involved, for the excess payments received by them, is to be determined by the construction to be placed on Chapter 224, Laws of 1932, providing that the Mayor and Commissioners of a municipality may reduce their salaries, after they have been fixed by law and ratified by an election held for that purpose, by an ordinance entered on the minutes of the municipality, and without an election. The question is whether the word "ordinance" shall be given a liberal or a technical construction. It will be noted that the provision of the Act in question does not require that the salaries be reduced by an ordinance duly published, and then enrolled in the ordinance book, but merely by an ordinance entered on the minutes of the municipality. An ordinance, in its ordinary sense, is required to be published and thereafter enrolled in the ordinance book, in order to be effective. It will be further noted that in the Code chapter on municipalities, the term "ordinance" and "order" are frequently used interchangeably. For instance, Section 2539, Code of 1930, provides that "all expenditures of money, for any purpose whatever, shall be in pursuance of a specific appropriation made by order, and in no other manner." Section 2540, Code of 1930, immediately following, provides that "every warrant drawn on the treasury shall express on its face to whom issued, and for what purpose allowed; and the ordinance authorizing its issuance shall be cited, by minute book and page, in or upon it." Words and Phrases, First Series, Volume 6, page 5026, states that an "`ordinance' is the generic term for acts of council affecting the affairs of corporations, and a resolution is only a less solemn or less usual form of an ordinance. Fuller v. City of Scranton, 1 Pa. Co. Ct. R. 405, 407." In Chandler v. Town of Johnson City, 105 Tenn. 633, 59 S.W. 142, it was held that "the term `ordinance' as used in a city charter which required the board of mayor and aldermen at its first meeting after the election and qualification to fix the salaries of officers by ordinance, should be construed as synonymous with `resolution,' so that an officer is bound by a resolution passed by the board fixing his salary." In the case of the Town of Tipton v. Norman, 72 Mo. 380, it was held that "where the powers conferred on a town are to be exercised by ordinances to be passed by the town council, an order or resolution adopted by the council and entered on its records, held, in point of form, a valid exercise of the power." Under the subject of ordinances in 43 C.J. 520, we find this statement or definition: "Where the Legislature has not prescribed any particular form for an ordinance, the municipal bodies may use any form of expression which suits them, provided it is sufficient to signify their will that the ordinance should exist, and indicate the terms of it and the objects to which it applies." Citing, among other authorities, a Mississippi case found in City of Corinth v. Sharp, 107 Miss. 696, 65 So. 888. See, also, Kennington v. Hemingway, 101 Miss. 259, 57 So. 809, 39 L.R.A. (N.S.), 541, Ann. Cas. 1914B, 392; City of Corinth v. Sharp, 65 So. 888, 107 Miss. 696. While there is some authority supporting the contention of appellants, we are of the opinion that the action of the Mayor and Councilmen in placing the order on the minutes of July 5, 1932, signifying their desire and purpose to exercise the power conferred by Chapter 224 of the Laws of 1932 of reducing their salaries to the sum of $200 per month, and in thereafter evidencing such intention by accepting a warrant each month for this amount until September, 1934, constituted a substantial compliance with the provisions of the Act, and was sufficient to effectuate the reduction of their salaries; that since the word "ordinance", as used in the Act, did not contemplate an ordinance to be published, and then enrolled in the ordinance book, the act of recording the reduction in salary on the minutes of the board was a sufficient "ordinance" within the meaning of the Statute. We would not be understood as saying, however, that the entry of an order on the minutes is a sufficient compliance with the provision of a statute which contemplates that a thing may be done only by an ordinance duly adopted, published and enrolled, rather than merely entered on the minutes.
For the reasons above stated, it is neither necessary to review the authorities under which the court below held that the appellants were estopped from claiming and receiving the additional compensation, after previously accepting and cashing warrants each month for a long period of time in the amount fixed by the order appearing on the minutes, nor to decide the issue of estoppel on which the court below, in part, predicated its decree.
The remaining question for decision is whether the chancellor erred in overruling the plea of nonjoinder as to the other sureties. We think not, for the reason that the appellant, Chinn, and the surety company on his official bond, are jointly and severally liable, along with Michel and Miss Lawrence, for the illegal payments made to them respectively upon warrants signed by Chinn as Mayor, and that the appellee was not required to sue all of the sureties on this joint and several liability. Security Mutual Life Insurance Company v. Brunson, 176 Miss. 893, 170 So. 824.
We are therefore of the opinion that the decree of the chancellor was correct in overruling the plea of non-joinder, and also in striking the answers of the appellants, as constituting no defense to the claim of the appellee for the sums received by them in excess of the salaries then in force, as fixed by the orders on the minutes of the board; but we do not now pass on the question as to whether the denials contained in the answers constituted a sufficient defense against the claim of the city for the cost of the audit and a 20% attorney's fee, since our attention is not called to any authority on which the claim is based, and the point has not been argued or briefed.
Affirmed and remanded.