Plaintiff, while city attorney of defendant city, revised the ordinances of said city. No contract for extra compensation was entered. After the revision was completed, the oity paid plaintiff for such work; such payment being in addition to bis salary. For a later period in plaintiff’s term' o.f office defendant failed and refused to pay plaintiff his salary. This action was brought to recover such salary. The city pleaded as a counterclaim the amount paid plaintiff for revising the ordinances. Plaintiff demurred to such counterclaim, and the demurrer was overruled. From the order overruling such demurrer this appeal was taken.
[1] Appellant does not contend but that money improperly paid a person holding a public office can be recovered of such *164person. McQuillin, Mun. Corp. § 527. But he does contend that a claim for moneys so improperly paid cannot be pleaded as a counterclaim in an action to recover official salary. There is no merit in such contention. 34 Cyc. 723; Wiles v. McIntosh County, 10 N. D. 594, 88 N. W. 710.
Upon the merits, appellant urges his right to retain the money paid him for revising the ordinances because it “was a payment -for extra services outside of the scope of appellant’s duties as city attorney.” He thus impliedly at least admits that if this work had been done “as city attorney” he would not have been entitled to extra compensation therefor. His demurrer confessed that the bill for such extra compensation, presented bo and allowed by the city -council, was for “services performed by the plaintiff as city attorney for isaid city of Platte.” But, even if appellant should be held not to have admitted by such demurrer that this revising of the ordinances was done “as city attorney,” but merely to- have admitted that he presented a bill so stating, yet the demurrer was properly overruled.
[2] Section 1247, P. C„ provides that:
“The city attorney shall perform all professional services incident to his office.”
We think the preparation of ordinances, whether it be one or a complete set, is a service incident to the office of city attorney under the above statute. It is true that section 15, c. 73, Laws 1887, now section 1194, P. C., provides that, after a city not incorporated under the general law incorporates under such general law, the mayor “may appoint, by and with the advice and consent of the city council, immediately after such change of organization, one or more competent persons to prepare and submit to the city council, for their adoption or rejection, an ordinance in revision of the ordinances of such city, the compensation of such reviser or revisers to be determined and fixed by the city council and paid out of the city treasury.” But this section has no application to the facts presented by the pleadings herein. We think the law as laid down in section 233, Dillon Mun. Corp. (4Ht Ed.), is fully supported by reason and authority:
“It is a well-settled rule that a person accepting a public office, with a fixed salary, is bound to perform' the duties of the *165office for the salary. He cannot legally claim additional compensation for the discharge of these duties, even though the salary may be a very inadequate remuneration for the services. Nor does it alter the case that by subsequent statutes or ordinances his duties within the scope of the charter poivers pertaining to the office are increased and .not his salary. Whenever he considers the compensation inadequate, .he is at liberty to resign. The rule is of importance to the public. To allow changes and additions in the duties properly belonging or which may properly be attached to an office to lay the foundation for extra compensation, would introduce intolerable mischief. The rule, too, should be rigidly enforced. The stautes of the legislature and the ordinances of our municipal corporations seldom prescribe with much detail and particularity the duties annexed to public offices; and it requires but little ingenuity to run nice distinctions between what duties may and what may not, be considered strictly official; and if these distinctions are much favored by courts of justice, it may lead to great abuse.”
To the same effect is the law announced in section 525, McQuillin, Mun. Corp., wherein is cited the case of Hays v. Oil City (Pa.) 11 Atl. 63. In that -case the -court held that the preparation of a digest or a codification of the laws applicable to the -city was within the line of the duties of the city attorney under a city charter which provided that the city attorney “shall d'o all and every professional act incident to the office which may be required of him” by the officers of the city. We think the following words of the court in that case are -peculiarly applicable in this' case:
“Lawyers may and possibly do honestly differ as to whether the services performed and here claimed for were strictly incident to the office. It was most certainly the professional labor of an attorney. It strictly pertained to the lawful administration of the government of the municipality; and it was needed by the council in the performance of their official duties. Applying, now, the rule laid down by Dillon, before recited, -that nice distinctions between what duties may and' what may not be considered strictly official should meet with little favor by the courts, and that this rule should be rigidly enforced, although it may make a seeming *166hardship in particular cases, yet it is a salutary rule to he enforced for the public benefit.”
The case of Cloonan v. City of Kingston, 37 Misc. Rep. 322, 75 N. Y. Supp. 425, is cited by appellant. A mere reference to the syllabus in that case shows that it has no application to the facts in this case, and a reading of the opinion itself fully supports the syllabus. This syllauibus is:
“Where the common council of a city has power to fix the salary of a city attorney, it may award him compensation for preparing a revision of the city charter, in excess of the amount of his salary.”
In other words, from- a reading of the decision and applying the reasoning to this case, if the city council of the city of Platte had had the power to fix the salary of plaintiff in an amount which would have included not only the salary which was fixed but also this extra compensation, then, even- though -it waited until after the work was done, it could allow this additional compensation. If we were to concede that the city council, after the services had been performed, cord-d, owing to such services, have increased appellant’s salary, the only latitude which the council would have had would have been to increase the salary to the .extent of $25 a year, and this -could only have been done by an ordinance. Sections 1256, 1257, P. C.
The order appealed from is affirmed.