City of Louisville v. Baird , 54 Ky. 246 ( 1854 )

Judge Simpson

delivered the opinion of the Court—

By an act of the Legislature of 1850, (see Session Acts, 1849-50, 46-9,) the mayor and council of the city of Louisville were authorized to propose amendments to their city charter, or to call a convention of delegates from the various wards in the city to amend it or to make a new one. The act also contains a provision, that if a convention were called for that purpose the delegates when elected should meet at such time and place as the mayor and council should direct, and perform the duties for which they were elected.

The question of holding a convention for the purposes contemplated by this act of the Legislature, was submitted by the mayor and council to the voters of the city. The proposition to hold a convention was sustained by the votes of a majority; and to carry out the wishes of the citizens as thus expressed, an ordinance was passed by the mayor and council prescribing the time and manner of the election of the delegates, the number of delegates to be elected in each ward, the time and place the convention was to convene, the mode of its organization, and the authority it should have to create liabilities upon the city.

1. A convention. was called by an ordinance of the city of Louisville, sanctioned by a vote of the people, to frame a charter for the better government of the city, members chosen, who framed a charter, which was adopted by the city. The ordinance held out no promise of compensation to the delegates, nor did it confer any power to vote themselves compensation, while it provided for compensation for clerks, printing, &c. Held by the cour t — t hat there existed no implied obligation upon the city to pay the delegates for their services. The maxim ex* pressto unius est exclusio'Ulterius. The delegates must be presumed to have been, actuated by patriotism alone in offering their, services.

Under this ordinance an election was held, and the appellee was elected in the second ward. A convention met, of which he was a member, and continued in session until it had framed a new charter for. the city, which was subsequently- adopted by a vote of the citizens. For his services as a delegate in this convention, an action was brought against the city by the appellee. He recovered a judgment in the circuit court for the sum of $216, being three dollars a day for seventy-two days service, the time which, according to the testimony, the convention was in session. From that judgment the city has appealed.

The only question to be determined is ^whether, under these circumstances, an agreement on the part of the city to pay the delegates to the convention can be implied?

The mayor and council in passing the ordinance to hold a convention, were-acting in their municipal capacity, and as officers of the city it was their duty to watch over and protect the interests of the corporation. Had any intention existed to compensate the members of the convention for their services, this ordinance should, and in all probability would, have defined the length of time the convention should continue in session, and the amount of compensation the members should receive during its continuance. The fact that the ordinance contains no provision-on the subject affords of itself a strong presumption, that such an intention had no existence.

But the ordinance points out explicitly the extent of the power the convention should have to create debts against the city. The power conferred for this purpose did not authorize the creation of a debt to compensate the members for their own services. As the matters which were to constitute a charge upon the city treasury were specially enumerated in the ordinance, all others must be regarded as excluded according to the legal maxim: Expressio unius est exclusio ulterius.

2. The citizens of every municipality owe public duties to the corporate bodies of which they are members, many of which are to be performed without compensation. Of this character were the duties devolving upon the members of the convention in this case.

The ordinance as framed could not have justified an expectation that the delegates were to be paid for their services. They voluntarily sought the office with a knowledge that no provision was made for their compensation. They must be presumed to have been willing to appropriate a portion of their time and talents to the promotion of the common good from motives of patriotism alone. There was no reasonable grounds for a belief on either side that the services rendered were not to be gratuitous. The citizens of every local municipality owe public duties to the corporate body of which they are members. Many of these duties have to be performed without compensation. Of this character were the duties which devolved upon this convention. The delegates were selected with reference to their qualifications for the station, and their willingness to accept of it, upon the terms proposed by the ordinance passed by the mayor and council. It was a station of honor and public confidence, in which the services rendered carried with them their own reward, in the general advancement and promotion of the public welfare.

No promise can be implied on the part of the city, under these circumstances, to pay the members of the convention, but if paid at all for their services, the payment will be entirely gratuitous.

Wherefore, the judgment is reversed and cause remanded, with directions to sustain the demurrer to the plaintiff’s petition, and render a judgment for the defendant.