Ries v. Town of West New York

The opinion of the court was delivered by Bergen, J.

The defendant is a municipal corporation, formed under “An act providing for the formation, establishment and government of towns,” approved March 7th, 1895 (Pamph. L., p. 218), which provides that the salaries of the clerk and other officers shall be fixed by ordinance, and when fixed shall not be increased or diminished during their term of office. The present collector and clerk went into office January 1st, 1909, and on March 16th following, the common council adopted an ordinance fixing the salaries of the clerk and collector at a greater sum than was paid to their predecessors. The prosecutor claims that this ordinance does not apply to the present clerk and collector, but that their compensation is governed by the ordinance in force when they *165 accepted tlieir offices, for otherwise their salaries would be increased during their term of office.

By an ordinance adopted February 20th, 1906, “The annual salaries and compensation to be paid to the several town officers of the town of West New York are hereby fixed as follows: Town clerk, $1,400; town collector, $1,200.” This was the only ordinance relating to this subject in force when the present collector and clerk went into office. It is urged on the part of the defendant that each year the common council has the power to fix the salary for all of the officers of the town after they come into office, and when once established, then no change can be made during their respective terms. This would be so if no salary had been fixed for the office when the new officer accepted the position to which he was elected or appointed, but I am of opinion that if there be an ordinance on the subject when a person goes into office, then the salary is fixed and so remains during the term of the incumbent. The ordinances of a municipality are not abrogated by the completion of the term of the members of the common council which have adopted them, and they remain the law of the municipality until lawfully repealed or altered, and the ordinance of 1906 fixing the salaries of the officers of this municipality was not limited to a fixed term, hut was general in its application and would warrant the payment of the salaries fixed by it for an indefinite period, to any number of persons who might successively fill the offices, so when this clerk and collector began their term of office there was a lawful ordinance fixing the salaries which they were entitled to receive, and any change in the amounts which a subsequent ordinance might 'establish could only relate to their successors. Nor does the argument that a preceding council might, from improper motives, reduce the salaries of those who were to be their successors, require a different conclusion upon any ground of public policy, for an evil as great, if not greater, might arise if the successors he permitted to fix their own compensation.

As the ordinance under review will apply to those taking office after the expiration of the present term, it must, of *166 course, stand, but the resolution for payment at the increased rate, which is also under review here, should, so far as it applies to the town clerk and town collector, be set aside.