Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1888-05-08
THE Ex.CHItF,s SALARY.
An Opinion of the City Attorney-The
City not Legally Liable.

City not Legally Liable.
City Attorney w S. Church yesterday filed
with the City Trustees the following
opinion, which Is self-explanatory:
To TIC Board II Trustees 0f The City Of Sac,d-
n,eIdo, Sate Of California, GENTLEMEN In reply
to your request for an oFinion as to the status of
the claims OF the Chief of Police, a. q police
force, for salary due them for the last three
months of the fiscal .Sear ending March 81, 1888,
would say that il is vexatious and compli-
Gated question, and proper one for the Courts.
[ undersan the facts of the case to be as fol-
lows: She Chief was elected by the people,
and the police force were appointed by the Po-
lice Commissioners. Under the Act of March
6, 1872 the police force consists OF a Captain OF
Police, and such number OF policemen, not to
exceed fifteen, as the Ponce commissioners may
deem necessary for the protection and good gov
eminent of tie city That Act also fixes the
monthly salaries of the Chief and police force
SIS follows: Chief OF Police, $50; Captain OF
Police. SIPS; policemen, 500; to be paid monthly
from the City Treasury. In February, 1857, the
City Trustees made their estimate for the ensu-
ing fiscal gear, commencing april /, 1887, and
providing only for Chief OF Police, Captain of
Police and eleven policemen Subsequently,
in April, 1887, the Police Commissioners in
creaseds.he police force TO fifteen men and
Captain. the number allowed by law On the
question of increase before the Police Commits
sioners, the President OF the Board OF trustees
voted mo" There was, therefore, during the
fiscal year commencing April /, 1887, ard end
ing March 81, 1888, seventeen men 10 O4iE
an appropriation made tor thirteen men only.
The salaries of the Chief of Police and police
force were paid uutil the Police Department
| fund was exhausted in January. 1885, with the
exception of about $500, and which was left as a
Balance on haad in the Police Depart
ment fund on March 81, 1883. The
Trustees allowed the salaries, and the
warrants were duly audited by 4he City
Auditor The following questions are presented
for my consideration, viz: How is the $500 bal
ance to be disposed of? Is the city OF Saera-
mento liable fer the deficiency? And, if so. how
may it be PAID While the Police Commission
ers appointed the extra men, at least under
color of authority of law, they did so with a
knowledge that their salary was not provided
for; and it will be observed that the Trustees
made no express contract to pay the extra men.
Thirteen men were entitled 10 draw frcd
salary for the fiscal year ending March 81 1888.
under the. estimates made by the jru tees. The
Chief was one of those men, undoubtedly, be-
cause his status was fixed and known at all
times when the February estimate was made
| when the Police Commissioners appointed the
extra force and when the first warrants were
drawn in May, 1887. But who were the other
| twelve men? That must be determined by
the Courts as "a question of fact. The
Chief and police force are entitled TO
the $500 balance left in the treasury on March
81, 1888. An invidious distinction can hardly
be made between the Chief and the police
force, with respect to their right as to this $500
on the ground that the Chief was elected TO
Office, while the policemen were appointed
The policemen, as well as the Chief, had a
HLtI SQtlfu ana are as muCn entitled to their
share of the $500 as the Chief is The estimates
were made before the Chief and police force en-
tered upon the performance of their duties
Each member of the police force, and the Chief
therefore, had notice in April 1887, that his
salary for the year might not be paid in full
and especially was this so when the Chief and
the twelve men provided for by the Trustees
permitted the extra men TO draw fixed salary
with themselves, all certainly knowing that the
fund would run short before the year was out
Those who contract with municipal corpora
ton are bound to know the extent OF the powers
of its officers. wallace VS.. Mayor OF San Jose,
% Cal. Isl. And where the charter of munic-
ipal corporation prescribes the mode in which
its contracts shall be made, no contract will
bind the corporation unless made in that mode.
(Zottman VS.. San Francisco, 20 Cal. 81: San
Francisco Gas Company VS.. San Francisco, 9 Id.
453.) While 1t is true that in some cases, where
a municipal corporation receives the benefit of
another services or labor, it would in the alb
sence CT any constitutional restriction be liable
upon an implied contract, to pay for such sery-
ices, upon the ground OF its general obligation
to do justice to all with whom it has dealings.
lArgenti VS.. City of San Francisco, 16 Cal. 256;
San Francisco Gas Company VS.. San Francisco,
9 Id. 453; Methodist Church VS.. Vicksburg, 80
Miss. COLI Still, in order that the doctrine of
liability upon an implied contract may be ap-
Piled III such cases, there must not only be no
restrictions imposed by the law upon the party
sought to be charged against making
to that which is implied, but the
party must also be in situation where he is en-
tirely free to elect whether he Will or will not
accept the work, and where such election will
or may influence the conduct of the other party
with reference to the work itself. (Zottman VS..
San Francisco, 20 Cal, 81 In this case the city
of Sacramento, acting through her Trustees.
was not in such a situation with respect to the
services of the extra policemen after they were
appointed by the Police Commissioners, and
after the estimates were made The circum-
stances were such that the City Trustees could
not help themselves. They could not repudiate
the appointments made by the Police Commits
sioners Cincinnati VS.. Cameron, 80 e. S. 1876 374
But, concedlng that the City Trustees agreed to
be liable for the services of the four extra
policemen forced upon them by the Police Com
missioners, the contract would be invalid under
the charter and under the statutes, decisions
and Constitution of the State. Under Section
Is, Article XI., of the Constitution, no in
debtedness or liability can be incurred
by a municipality, except in the manner
therein stated, exceeding in any year the
income and revenue actually received by it, In
other words, each years income and revenue
| must pay each years Indebtedness and liability,
and no Indebtedness or liability incurred in any
one year shall be paid out of the income or
revenue of any future year. (See, also, to the
same effect, San Francisco Gas Company VS.
| Brickwedel, g. Cal. GIL; Wallace VS.. Mayor OF
| San Jose, % Id. ISL; Revised City Charter Ar
| ticle ", Sections % pa The money must also
| be in the proper fund in the treasury with
which 10 pay the Indebtedness or liability CON
| traeted by the Trustees and sny Indebtedness
or liability incurred contrary to this provision
IS void. (See Revised City Charter, Article v,
| SeStlOu "a NOnsllluliOn OF tdlliOTlla. Article
! XI., Section 49, 1t will be observed that the
Chief was one of the Police Commissioners who
voted to increase the police force, thereby en-
dangering the payment in tull of his
own salary. Had he voted NO. with
| the President of the Board of trustees,
on the preston of increase, the inextric-
able tangle concerning the payment OF
| his salary and that of the police force would
| have been avoided. My conclusion is that the
city of Sacramento is not legally liable for the
| deficiency. 1t is not liable on an implied con-
| tract, ana If it were, there is no fluid out OF
which the debt could be paid. The last year S
debts cannot be paid out of this years money.
| No legislative relief can be obtained because,
under Article w., Section D, Subdivision 10 OF
| the Constitution, the Legislature is probibited
from passing any local or special law providing
| for the assessment or collection of t-xes My
| opinion, however, is that under Article v, Sec
tons 70, q, y, of the Revised City Charter, the
Trustees have the power to levy ana collect a
special tax to pay said deficiency, provided
| they are authorized to do so by a two-thirds
vote of the qualified electors of the city Of Sac
ramento. Respectfully yours,
W. s. CHURCH City Attorney