Mayor of Wilmington v. Wolcott

after making the foregoing statement, delivering the opinion of the majority of the Court:

Counsel for the appellants admits that the ordinance of May 14, 1914, was at the time of its passage invalid, the same being contrary to the provision of the charter of the City of Wilmington, but contends that the ordinance was validated by the Act of Legislature approved March 15, 1915. The Court below held both the ordinance and Act of Legislature to be in violation of article 8, § 8, of the Constitution of the State of Delaware, for the reason that the appropriation provided for was a gratuity and a payment to individuals not for a public but for a private purpose; that there could be no moral claim by the members of the board for. extra compensation because it was their duty to do the extra work.

Article 8, § 8, reads as follows:

“No county, city, town or other municipality shall lend its credit or appropriate money to, or assume the debt of, or become a shareholder or joint owner in or with any private .corporation or any person or company whatever.”

This Court cannot agree with the Court below in holding that the ordinance and act of 1915, were in violation of section 8, article 8, of the Constitution, for we are of the opinion that the appropriation was for a public and not'a private purpose. The appropriation was to individuals, but the work the board did was for a public purpose and strictly public in its character. The fact that the appropriation is to individuals does not prevent the purpose from being a public one. The nature and character of the work done for which the appropriation is made determines whether it is for a public or private purpose. The making of an

This Court cannot agree with the Court below in holding that there could be no moral claim by the members of the board for extra compensation because it was their duty to do the extra work. 1 Cooley on Taxation, 208, 209. We are of the opinion that the statute providing for the new assessment did not require the new assessment to be made, and, if made, that the members of the board were not required to do the work themselves, as they had authority under the Act to employ experts or others to do the work, and when The Mayor and Council agreed that the members of the board should do the work and be paid reasonable compensation therefor, there was, under the circumstances of the case, a moral obligation resting upon the city to pay the members of the board for the extra work they did in making the assessment.

The law is settled that a public official has no legal claim for extra compensation for unusual or increased work within the scope of his official duties, and unquestionably the members of the board could not compel the city to compensate them for making the new assessment. But the right of an official to recover compensation for extra work is not the question before us because the members of tb» board have been paid by the city. The question before us is the right of the City Council or the Legislature to grant it when the officials fairly and honestly earned and are equitably entitled to it.

The Mayor and City Council determined that a new assessment for the city should be made, and it could better be done by members of the board than by experts or others who might' be employed. The board had authority to employ others to do the work. The Mayor and members of City Council, believing that they had legal authority to do so, agreed with the members of the board to compensate them for the extra services. Stover and White performed the work for which they received extra com

It is not denied that the members of the board performed the work in an efficient and satisfactory manner; that the work was of a different kind, difficult and far greater than any the board had previously performed; that the work done by White and Stover was arduous, exacting and long-continued, to the great detriment of their private business; that the assessment was of great and continued benefit to the city and worth all the extra compensation paid them therefor. Mount v. State, 90 Ind. 29 , 46 Am. Rep. 192 ; Evans v. Trenton, 24 N. J. Law, 764 ; Niles v. Muzzy, 33 Mich. 61 , 20 Am. Rep. 670 ; Matter of Borup, 182 N. Y. 222 , 74 N. E. 838 , 108 Am. St. Rep. 796 ; Rutgers College v. Morgan, 70 N. J. Law, 460 , 57 Atl. 250 ; United States v. Realty Co., 163 U. S. 427 , 16 Sup. Ct. 1120 , 41 L. Ed. 215 ; Friend v. Gilbert, 108 Mass. 408 ; Detroit v. Redfield, 19 Mich. 376 ; McBride v. Grand Rapids, 47 Mich. 236 , 10 N. W. 353 .

One disturbing fact with respect to the moral or equitable claim of the members of the board for compensation for the extra work is that Stover and White were members of the city council at the time the agreement was made. While this fact might ordinarily raise suspicion of such a nature as would prevent payment to the members of the board for the extra work, yet in the present case we think the claim is not removed from the class considered moral or equitable, for the reason that they were by the authorities requested to do the work and were promised reasonable compensation therefor, and it clearly appears from the record that there was no fraudulent or collusive conduct on the part of the members of the board or anyone acting for the city.

This case has been twice argued before the Court. After the first argument we reached the conclusion above expressed respecting the other questions raised, but were not convinced that the legislative act of 1915 was constitutional, and stated that the judgment of the Court below would be affirmed. Thereupon a motion for reargument of the case was made by the appellants and granted by the Court.

The reargument was heard at the last June term, upon the

Mr. Sutherland, in his work on Statutory Construction, (2dEd.) vol. 2, at 1237 and 1238, says:

“It is no objection to a curative Act that it validates what has previously been declared invalid in a judicial proceeding. The judgment may furnish the occasion for this Act. Of course the Legislature cannot annul or set aside the judgment of a court, but it may remove a defect on which judgment proceeded.” ■ •

See also Cooley on Const. Limitation, 541, 542, 543, and 544.

In the present case no final judgment had been entered by the Court when the healing act was passed. It was only a proceeding before the Court, and at a preliminary stage, when a decision was made on demurrer to the bill of complaint. The curative act did not reverse the decision of the Chancellor, but on the contrary recognized the soundness of his decision on the law as it then existed. The purpose of the Act was to make valid an Act of the City Council which was invalid at the time of the Chancellor’s decision. Clearly such an Act would have been valid if passed before the decision, and we cannot see why it is not equally valid if passed after the decision. It could not reverse the decision and did not pretend to, but it could change the law upon which the decision was based. The law upon the subject is very clearly stated by the Court, composed of Caldwell, Sanborn,

' “From this it follows that the Legislature could retroactively legalize the contract, unless such action would be an infringement upon the judicial power. The act of a municipality, done without authority previously conferred, may be confirmed and legalized by subsequent legislative enactment when legislation of that character is not prohibited by the Constitution, and when that which was done would have been legal had it been done under legislative sanction previously given. [Citations.] The objection that the act in question was judicial legislation wholly misconceives the nature of the act. The Legislature did not declare the contract valid which the court had adjudged invalid, but made it valid by imparting to it the legislative sanction which the Court had declared was the only element wanting to its validity. The Act did not construe, but completed, the imperfect contract which the county had made. Seizing upon the duty that in good conscience rested upon the county, to pay for the service which it had received, the Legislature, by virtue of its authority over the municipality as a public agency of the State, ratified its act, and thereby changed its moral duty into a legal obligar tiqn. Its Act was formative, not judicial. The want of power in a municipal corporation to enter into a contract is usually disclosed for the first time by an adverse decision in the courts, and, if it should be held that such a decision precludes the Legislature from curing the defect, retroactive legislation would be defeated in those cases in which it has heretofore been most frequently used, and in which it had its highest justification. Such is not the law.”

In reply to the contention that the corporation has a vested right under the judgment, the Court said:

“The defendant is a public quasi corporation, created solely for governmental purposes. It holds all its property, and rights, not as a private proprietor, but for the performance of those public duties, with which it is charged by law. Being a mere instrumentality of the State for the convenient administration of government, it is at all times, both as to its powers and its rights, subject to legislative control. * * * A purely public corporation, like a county, cannot acquire any vested interest which will preclude the Legislature from directing the application of all its property and rights. * * *

“The obligations of private parties must be determined by the law in force at the time the transactions out of which they accrue. But, as we have already seen, this principle does not apply in case of public corporations, so as to preclude the passage of curative acts. It being conceded that the defendant had no vested right, as against the Legislature, in the defense of ultra vires, how can a judgment which simply declares the existence of that defense create a better right than the defense itself.”

The judgment of the Court below will be reversed.