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Municipal Corporations
City Manager Form of Government
Public Officers
Malfeasance

Voting and accepting salary by city
councilmen contrary to explicit statute is
offense under Section 348.28, Stats.

April 10, 1930.

WALTER B. MURAT,

District Attorney, Stevens Point, Wisconsin.

In your letter of February 7, 1930, and your
supplementary communication of March 22,
1930, you state that at the spring election
of 1928 the city of Stevens Point voted to
adopt the city manager form of government;
that when the new city council was organized
no provision was made for the compensation of
the members thereof; that on April 16, 1929,
the council voted to fix the salary of its
members at $30 per month or $360 per year,
which salary was paid to and accepted by the
five members of the council for a period of
five months, at the close of which period the
legality of the payments was questioned.

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You inquire whether the acts above
set forth constitute a violation of
Section 348.28, Stats.

Section 64.03, Subsection (1), Stats.,
is as follows:

     64.03(1)

     Every ordinance or resolution for the
     adoption of this chapter, and every
     petition for a special election on the
     same, shall state the number of members
     of which the council herein provided for
     shall be composed, the term of office of
     its members, which term shall not exceed
     two years, whether they shall be
     nominated and elected from wards or from
     the city at large, and the compensation,
     if any, which they shall receive.

Section 64.08, Stats., is as follows:

     The councilmen shall devote such time to
     the duties of their office as the
     interests and general welfare of the
     city demand and shall receive such
     compensation, not to exceed two
     hundred dollars per year, as
     determined in the petition,
     ordinance or resolution
     provided for in
     section 64.03.

     The council shall have power by
     ordinance to fix the salary of
     their successors in office, but
     in no case shall such salary
     exceed two hundred dollars per year.

It is evident from a reading of the above
statutes that the councilmen originally
elected were entitled during their term
of office to that compensation only which
was definitely specified in the ordinance
or petition which initiated the election
for the adoption of the city manager plan.

If no compensation was so specified, then
they were entitled to no compensation
and took office under that condition.

The action taken on April 16, 1929,
prescribing a salary could only have applied
to the successors in office of the councilmen
holding office on that date.

However, since the salary fixed was in excess
of the maximum prescribed by Section 64.08,
Stats., the attempted action was beyond the
power of the council and, therefore, void.

The entire amount was, therefore paid to and
received by the councilmen unlawfully, and
each is liable therefor in an action to
compel restitution.

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Murphy v. Paull, 192 Wis. 93;
Henry v. Dolen,  186 Wis. 622, 625;
Webster et al. v. Douglas County et al.,
                 102 Wis. 181, 189.

Whether the acts described constitute a
violation of Section 348.28, Stats.,
presents a closer question.

This section imposes a penalty upon
a city official who shall,

     do any other act in his official
     capacity or in any public or
     official service not authorized
     or required by law,

and further,

     or who shall ask, demand, or exact for
     the performance of any service or duty
     imposed upon him by law any greater
     fee than is allowed by law for the
     performance of such service or duty.

This statute, being penal in character,
must be strictly construed.

Musback v. Schaefer, 115 Wis. 357.

The term "fee" is ordinarily defined as
referring to a specific compensation for a
particular act, as distinguished from
"salary," which refers to compensation for
work during a definite period of time; but
"fee" has been in some cases construed as
including salary or wages. 25 C.J. 1010.

In Rose v. Superior Court, 80 Gal. App. 739,
252 Pac. 765, decided in 1927, the court
construed the California penal code,
See 772, which contains the
following similar language, -

     . . . alleging that any officer . . .
     has been guilty of charging and
     collecting illegal fees for
     services rendered, or to be
     rendered in his office . . .

The conviction of a director of an irrigation
district for collecting money for expenses
which were not actually incurred by
him was sustained.

The purpose of the act was said to be to
assure the public that their officials
shall not be permitted to mulct them
by improper or illegal charges.

Section 348.28, Stats., when read as a whole,
evidently has a purpose similar to that of
the California statute so construed
 in the case above cited.

The voting of a salary in excess of the
lawful maximum for themselves during their
current term of office was an act done in an
official capacity not authorized or required
by law, and, in the words of the California
court, it "mulct" the public to the amount of
the salary so paid.

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Thus, even if "fee" be construed in
the narrowest sense, the clause of
Section 348.28 first above quoted,
would seem to be sufficient to
bring the acts of the councilmen
within the scope of the statute.

It is the opinion of this department
that the acts set forth in your
letter constitute a violation
of Section 348.28, Stats.

SB

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