Page:North Dakota Reports (vol. 1).pdf/306

 gations of the complaint to be true; and also found that the plaintiff was present at a meeting of defendant’s board of trustees on January 21, 1888, at which meeting a resolution was passed purporting to fix the salary of marshal of said town at $25 per month, and that for the months of May and June after his election the marshal drew his salary on his bills rendered, at the rate of $25 per month. Judgment was rendered for plaintiff for $545 and interest from May 20, 1889.

It does not appear in the findings, but is admitted by both parties, that the resolution or by-law reducing the salary of the marshal was never published or posted. The defendant town was incorporated under the general town incorporation law, being article 2 c. 11, Pol. Code, (Comp. Laws, §§ 1022-1094 inclusive.) Section 1069 is as follows: ‘The trustees, assessor, treasurer, marshal, and justices of the peace shall respectively receive for their services such compensation as the board of trustees in their by-laws may decide.” And it is provided in § 1043 that “every by-law, ordinance, or regulation, unless in case of emergency, shall be published in a newspaper in such town, if one be published therein, or posted in five public places, at least ten days before the same shall take effect.” This is not a case where knowledge on the part of plaintiff of the action of the trustees could obviate the necessity of publication or posting. One or the other of those things was a necessary prerequisite to a completed enactment, except in cases of emergency, and nothing of that kind is found or appears in this case. The proposed by-law never reached the conditions of completion, and as a corporate regulation it never had any existence, and can receive no consideration. The original by-law fixing the salary of the marshal at $50 per month remained in full force during the whole term of plaintiff's incumbency.

It is claimed, however, that, as plaintiff was present when the defendant’s board of trustees attempted to reduce the salary, and as he claimed and received his salary at the reduced figure during the whole of his appointive term, and for the first two months of his elective term, he thereby elected to receive such reduced salary for his full term, and is now estopped from claiming anything further: The compensation of the marshal as fixed by the