Williams v. City of Tucumcari, 31 N.M. 533, 249 P. 106 (1926)

July 30, 1926 · Supreme Court of New Mexico · No. 2907
31 N.M. 533, 249 P. 106

[No. 2907.

July 30, 1926.]


[249 Pac. 106.]

*535C. H. Aldredge, of Tucumcari, and H. A. Kiker, of Raton, for appellant.

R. A. Prentice, of Tucumcari, for appellee.


BRICE, District Judge.

"We have concluded there was. never any legal authority for the city council to pay to plaintifff the salary claimed, which makes it unnecesarsy to decide a number of propositions advanced. The allegations of the complaint show clearly that such claim is based upon informal orders made by the city council fixing the salary of the city clerk, and not by formal ordinances as required by the statute. If the court erred in, overruling plaintiff’s motion to strike defendant’s answer because it was *536not verified — and we do.not think he did — (Bank of Edgefield v. Farmers’ Co-operative Mfg. Co., 52 F. 98, 2 C. C. A. 637, 18 L. R. A. 201; Hyde v. Bryan, 24. N. M. 457, 174 P. 419; Anderson v. Hance et al., 49 Mo. 159; Lattimer v. Ryan, 20 Cal. 629; Wheeler v. Wales, 3 Bush [Ky.] 225; Tulloch v. Belleville Pump & Skein Works, 17 Colo. 579, 31 P. 229), still he could not have gijven judgment on the complaint, for it states no cause of action.

The statute specifically provides that the salary of the city clerk shall be fixed by ordinance. The last paragraph of section 3590, Code of 1915, reading, “The city council shall, as early as their iast regular meeting before the annual election, fix the salaries and fees of all the officers of said city, for the period of one year next ensuing the election, and qualification of the officers elected at the next annual election, * * *” is controlled by the special provision reading, “The city clerk shall perform all the duties of his office that may be fixed by ordinance, and receive such salary and fees as the city council may, by ordinance, declare,” all in the same section. This particular provision must be held to be operative, and the general provision must be held to affect only such officers whose salaries are not to be fixed by ordinance as provided by the particular provisions in the section. 25 R. C. L. title “Statutes,” § 250; Black on Interpretation of Laws, page 201. The Legislature must have intended that the salary of the city clerk and some other officers named in said section should be fixed with the formalities of an ordinance or there would have been no necessity for any provision other than the general one at the end of the section.

Where the statute requires an act of a city to be done in the form of an ordinance, it can .only be done in that form. A resolution is not sufficient, except perhaps when passed with all of the formalities required of ordinances, this being its legal equivalent. Newman v. Emporia, 32 Kan. 456, 4 P. 815; Town of *537Trenton v. Coyle, 107 Mo. 193, 17 S. W. 643; City of Nevada v. Eddy et al., 123 Mo. 546, 27 S. W. 471; State, etc., v. Barnet, 46 N. J. Law, 62; City of Springfield v. Knott, 49 Mo. App. 612; State, etc., v. Common Council of the City of Lambertville, 45 N. J. Law, 279; City of Central v. Sears, 2 Colo. 588; 2 McQuillen, Municipal Corporations, §§ 516, 636; 2 Dillon on Municipal Corporations, § 572. An informal order does not comply with the statute.

It is immaterial to the determination of this case whether or not said ordinance No. 7 remained in force longer than the succeeding election, as the salary of .$25 per month -provided by such ordinance was paid, and there is no cross-action on the part of the city to recover it; so it is unnecessary to decide whether or not it is required by section 3590, Code of 1915, that a formal ordinance fixing the salary of the city clerk should be passed each year.

It follows that the judgment of the district court was correct and should be affirmed, and it is so ordered.

’ PARKER, C. J. and WATSON, J., concur.