said town, if one be printed therein, or posted in five public places, at least ten days before the same shall take effect,” a by-law passed by the town trustees, but never published or posted, in a case where no emergency is alleged or shown, is of no force or effect, even as to such persons as have notice of its passage by the trustees. Either publication or posting is a prerequisite to a binding enactment.
2. Same; Salary of Officer.
When the compensation of a town marshal is fixed at a certain amount per month, the fact that such marshal renders his bills for services and receives his pay for two months, at a rate less than the rate fixed by law, will not preclude such officer from claiming the full pay allowed by law for the subsequent months.
3. Same; Payment of Less than Legal Salary Accepted.
But the fact that such officer rendered his bills for two months, even though for an amount less than that prescribed by law, and that such bills were allowed and paid as rendered, and such payment received without objection or protest, amounts to an adjudication of the claim for services for the time covered by the bills rendered, which, in the absence of accident, surprise, or mistake of fact, cannot be reopened.
(Opinion Filed November 29, 1890.)
APPEAL from district court, Walsh county; Hon. Charles F. Templeton, Judge.
H. A. Libby, for the appellant: Plaintiff accepted salary under the ordinance, which he now claims was invalid; by such acceptance his salary was fixed: Thomas v. St. Clair Co. Supervisors, 8 N. W. 45; Brick v. Plymouth Co. 19 id. 304; Bryan v. Des Moines, 51 Iowa, 590. Fixing the salary at $25 a month was the same as fixing it at $300 a year, for the board had no power to change the salary during the term for which the officer was elected; therefore acceptance of one month’s salary as fixed by the board, was a ratification and acceptance of the ordinance fixing the salary for the year: Iron Cliffs Co. v. Gingrass, 48 Mich. 413; City of Wyandotte v. Drennan, 9 N. W. 500; Doolan v. Manitowoc, 4 id. 475. Plaintiff is estopped from asking more than he accepted: Cont. Nat. Bk. v. Bank, 50 N. Y. 575.
H. W. Phelps, for respondent: Consent. of appellant could not do away with the requirement that the ordinance be published: Everett v. Buchanan, 8 N. W. 35. An officer cannot
