Riley v. City of Kansas

• Decision Date: 13 June 1888
• Parties: JOHN J. RILEY, Respondent, v. THE CITY OF KANSAS, Appellant.
• Court: Kansas Court of Appeals

31 Mo.App. 439

JOHN J. RILEY, Respondent, v. THE CITY OF KANSAS, Appellant.

Court of Appeals of Missouri, Kansas City.

June 13, 1888

Appeal from Jackson Circuit Court, HON. TURNER A. GILL, Judge.

Reversed and petition dismissed.

The case is stated in the opinion.

R. W QUARLES and W. A. ALDERSON, for the appellant.

The Supreme Court has directly decided that an action of this nature cannot be maintained against the City of Kansas. The act establishing the board of police commissioners and the amendment thereto are alone sufficient to emphatically negative the city's liability to the appellee, his suit not being on a warrant drawn on the city by the board. Argument to any extent would be superfluous. The three assignments of errors may be reduced to the single proposition that this action cannot be maintained, and the judgment should be reversed and the cause dismissed. Flanagan v. City of Kansas, 69 Mo. 462; Sanford v. City of Kansas, 69 Mo. 466; Acts of 1874, p. 327; Acts of 1875, p. 193.

CHASE & POWELL, for the respondent.

I. While no such position was taken in the court below, it appears from cases cited in appellant's brief (69 Mo 466) that defendant now claims that plaintiff's proper remedy was a writ of mandamus to compel police commissioners to issue warrants for amount due plaintiff, and then a suit against the city upon such warrants. If such be plaintiff's proper course, for how much should the warrants have been ordered on the first count of plaintiff's petition, which is for a breach of the contract of hiring? Is the court first to hear evidence as to the liability of the city to plaintiff, and the amount of such liability, and then by its writ of mandamus command the board of police commissioners to issue the warrants for such amount in favor of plaintiff, as the basis of his action against the city? We find neither law nor precedent for such legal absurdity, and if such course be unreasonable and absurd, how can it be said that the issuance of warrants must first be commanded before the city is liable for payment of services rendered by its police officers? And especially when the fourteenth section of the act creating a board of police commissioners (Sanford v. The City of Kansas, 69 Mo. 467)" provides two modes whereby the members of the police force are to be paid: First, the board is to make requisition upon the disbursing officer of the city for the requisite sum; second, in case the common council fail to make the requisite appropriation, or the disbursing officer fail to pay, then it becomes the duty of the board to issue warrants in the name of the City of Kansas for the requisite amount.

II. Defendant very nearly takes the position that if the agent of a principal refuses to pay out money put in his hands for a specific purpose, and recognized indebtedness, that his principal is thereby released from liability for such services. This proposition seems to be without authority or precedent, unless the case by appellant cited, in 69 Mo. 466 may be called a precedent, and against this we protest, as we are unable to apply the law of that case to the opposite state of facts here existing. We think it doing violence to the opinion in said case rendered, to draw an inference even that the " two modes whereby the members of the police force are to be paid" were to be invoked at the same time, and for the same purpose, or that warrants, as provided in the second " mode," should be issued in payment of policemen's claims for services, when the money therefor had already been appropriated and placed in the hands of board of commissioners for payment of same claims for which warrants would issue, if issued at all; or, when the first mode had been adopted. Why, the warrants are but the written obligation of the city to pay. And the act nowhere contemplates that the city must give her note in payment for policemen's services, " bearing interest at six per cent. per annum, payable on demand," when the city has the money on hand and drawing no interest, for the payment of such services. We neither understand said opinion (Sanford v. City of Kansas, 69 Mo. 466) to support the position of defendant, that city is not proper party defendant, nor to hold the doctrine that " mandamus against board of police commissioners," commanding them to issue warrants, is plaintiff's appropriate remedy, when the first mode of paying has been adopted and money is in hands of party legally authorized to pay.

III. This seems to us a delegation of agency. Their services are performed for and on behalf of the city. They have express power to bind the city in the line of their services. And they are paid by the city for such services. Barnes v. Dist. Columbia, 1 Otto [U. S.] 540; Devoy v. Mayor, 39 Barb. [N. Y.] 169; People v. Mayor, 25 Wend. [N. Y.] 680; Green v. Mayor, 2 Hilton [N. Y.] 203.

IV. In Green v. Mayor, 2 Hilton [N. Y.] 203, the court say the defendant's liability is fixed by competent authority, and defendant is subject to the ordinary modes of having legal liabilities enforced. Citing, also, 25 Wend. 680, above cited. In the case at bar, defendant's liability is fixed by statute, " competent authority," and, as warrants are only required to be drawn for pay of policemen, in case the city refuses to make an appropriation, or the disbursing officer fails to pay over the same to the board, we see no reason why defendant is not " subject to ordinary modes of having legal liability enforced." And this is not by mandamus for warrants, in cases where no warrants are required, but by the mode herein invoked. In what cases courts may issue writs of mandamus and other remedial writs, has not been prescribed in the constitution authorizing such writs, nor in our written law, otherwise than by the adoption of the common law, which defines the class of cases to which they are respectively applicable. Dunklin County v. District County Court, 23 Mo. 449; State ex rel. v. Lafayette County Court, 41 Mo. 225.

V. And again, mandamus will not lie where the amount is in dispute. The People ex rel. v. Hawkins, 46 N.Y. App. 11; The United States ex rel. v. Edmunds, Commissioner, 5 Wall. 563; People ex rel. v. Leonard, 74 N.Y. App. 443.

VI. Plaintiff herein sues for breach of contract of hiring, and also for services rendered. Two questions, therefore, are here in dispute: First, is plaintiff entitled to anything? Second, if so, how much? We recur, then, to the only question before the court in this case: Can a policeman maintain an action against the City of Kansas for a breach of contract of hiring, or for services rendered said city as a police officer? Authorities above cited expressly hold that such action cannot be brought against the board of commissioners. Then, if not against the city, is a police officer without remedy?

PHILIPS P. J.

The petition contains two counts. The first alleged that the plaintiff, in 1883, was appointed and employed by the board of police commissioners for the defendant city, as a policeman for the period of three years, at the stipulated sum of $72.50 per month; that he entered upon such service and so continued until the nineteenth day of May, 1885, when he was, without cause or trial, unlawfully discharged from his office and employment by said commissioners, and wrongfully deprived of the...