Page:North Dakota Reports (vol. 1).pdf/305

 bind himself to accept a smaller salary than the law allows. Purdy v. Independence, 39 N. W. 641. The plaintiff was not estopped, nor did he ratify or accept the ordinance by accepting salary for a time, at the rate fixed by the ordinance: Clarke v. Milwaukee Co. 9 N. W. 782; O’Herrin v. Milwaukee Co. 30 id. 239.

, J. This action was brought by plaintiff to recover a balance of salary claimed to be due as marshal of the defendant town. The case was tried to the court The complaint, after alleging the incorporation of the defendant under the general laws of the territory of Dakota, set out a by-law of defendant, known as “By-law No. 9,” duly passed and adopted in February, 1885, and duly published, fixing the salary of the marshal at “the sum of $50 per month, payable at the end of each month,” and alleged that said by-law had never been repealed or amended; alleged that on the 7th day of May, 1888, plaintiff was duly elected marshal of said town, and duly qualified and served as such from said May 7, 1888, to May 6, 1889, and earned the sum of $600 as salary, no part of which has been paid, except the sum of $55; that on May 20, 1889, plaintiff duly presented to the board of trustees his bill of $545, balance due on salary, which said board allowed at the sum of $245 only, and on condition that plaintiff would accept the same in full of all claims against said town, which amount plaintiff refused to accept, and judgment is asked for such balance with interest from May 6, 1889. The answer alleged that in the latter part of 1887 there was a vacancy in the office of marshal of said town, and that plaintiff applied to be appointed to fill such vacancy, and stated that, if so appointed and elected at the next ensuing election, he would perform the duties of said office for $25 per month, and that thereupon the board of trustees of said town appointed plaintiff to fill said vacancy, and on January 21, 1888, and in presence of said marshal, passed an ordinance fixing the salary of marshal at $25 per month; that, during all the time that he served by appointment, and for the first two months that he served under an election, said marshal drew his salary at the rate of $25 per month upon his bills duly rendered and allowed. The court found the alle-