Aslin v. Stoddard County

• Decision Date: 21 June 1937
• Citation: 106 S.W.2d 472,341 Mo. 138
• Parties: Jess Aslin v. Stoddard County, Appellant
• Court: Missouri Supreme Court

106 S.W.2d 472

341 Mo. 138

Jess Aslin v. Stoddard County, Appellant

Supreme Court of Missouri

June 21, 1937

Appeal from Cape Girardeau Circuit Court; Hon. Frank Kelly Judge.

Affirmed.

Henry M. Phillips for appellant.

(1) The courthouse janitor is an employee of the county court, and the authority of the county court employing a janitor is derived from the duty and authority of general supervision given to the county court over county buildings and property by law. It is not an office or employment the term or tenure of which is fixed by law. Sec. 2078, R. S. 1929; Kansas City Disinfecting & Mfg. Co. v. Bates County, 273 Mo 305. (2) The "New County Court" had the right to revoke the purported appointments of all, or any, of the above appointments at pleasure because "where the terms of office is not fixed by law, the officer is regarded as holding at the will of the appointing power, even though the appointing power attempts to fix a definite term, and an officer removable at the pleasure of the appointing power has, in the strict meaning of the word, no term of office. 46 C. J., p. 964. (3) The county court has the lawful right to pay Sank Parks, the present janitor, whose employment is evidenced by the court record, for his work after it has been done, although no written contract of his employment has been executed. Capp v. St. Louis County, 34 Mo. 383. (4) The appointment of the courthouse janitor, the county physician, the county welfare officer, deputy health commissioner, superintendent of the county poor house and county land agent by written contracts by the "Old County Court" on the last secular day they were in office and for terms covering the entire time of their (old court) successor's term of office was void because as a general rule a county court cannot make a contract extending beyond the term of office of the members, and because these appointments were not made in good faith, without fraud and collusion and for a reasonable period of time. 15 C. J., p 541, sec. 234; Tate v. School Dist., 23 S.W.2d 1013.

Geo. Munger for respondent.

(1) The law presumes right and not wrong action by all men. Therefore, if the evidence is as consistent with honest motives as with dishonest purpose the finding will be against the party alleging fraud. Kilpatrick v. Wiley, 197 Mo. 159; Webb v. Darby, 94 Mo. 629; Shinnabarger v. Shelton, 41 Mo.App. 159. (2) Fraud is never presumed. Lumber Co. v. Crommer, 202 Mo. 521. Fraud must be made to appear by clear, cogent and convincing evidence. Woolsey v. Wells, 281 S.W. 700. (3) The county court is the general agent of the county. Disinfectant Co. v. Bates County, 273 Mo. 306. (a) The "old" court was a trustee for the funds of the county and as such owed to the county the duty of reducing the expense of the county government where it could be done without loss of efficiency. Disinfectant Co. v. Bates County, 273 Mo. 305. (b) The "new" court owed the same duty to the county. (4) The finding of the court was in favor of fair dealing and good faith and is binding on that point. Tate v. School Dist., 23 S.W.2d 1028.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

Respondent sued Stoddard County, in the circuit court of said county, to recover $ 500 wages or salary as janitor under contract with the county court of said county. The case was sent on change of venue to the Circuit Court of Cape Girardeau County, where it was tried to the court, without a jury, resulting in a judgment for respondent for the full amount, from which this appeal was duly taken.

The case was submitted to the court on an agreed statement of facts, reading as follows:

"For the purpose of obtaining a judicial determination of this cause without bringing the witnesses into court the parties plaintiff and defendant do hereby agree that the following facts are true and constitute all the facts to be considered by the Court in deciding this cause, each party hereto reserving the right to object to the relevancy and materiality and also the admissibility of any of such facts so stated.

"In the August primary, 1932, W. J. Garner and Frank B. Carney, who were then associate justices of the County Court of Stoddard County and who, with W. J. Wilson, Presiding Judge, composed said County Court, were candidates for re-election as associate judges and were defeated by H. D. Stroup and John P. LaRue respectively; that said Stroup and LaRue were elected associate justices at the general election that year and took office as such at the coming in of the new year, and thus the new court was composed of W. J. Wilson, H. D. Stroup and John P. LaRue, whereas the old court was composed of W. J. Wilson, W. J. Garner and Frank B. Carney.

"On the 31st day of December, 1932, the County Court of Stoddard County, as above set out as to personnel, entered into the written agreement attached to the petition filed by plaintiff in this case and made a full record thereof on its minutes and full record.

"On the first secular day in January, 1933, plaintiff, in keeping with his agreement as set out in said contract of December 31st, aforesaid, appeared before the County Court of Stoddard County, at the courthouse in said county and while said court was in session, and informed them that he was ready to begin the discharge of the duties as caretaker and janitor of the courthouse and office building then owned by said county and used and cared for by it; that he was then able and willing to discharge all of the duties aforesaid; that said court refused to permit him to perform said duties under said contract; that thereafter and up to the time he filed this suit plaintiff was so able and willing to perform all the duties and stood ready to do so and so notified said court from time to time during said period, and especially on the first day of each month up to the bringing of this suit and that plaintiff often demanded payment of the said salary under said contract but that defendant, by its county court aforesaid has at all times refused to permit plaintiff to discharge the duties under said contract and has also refused to pay him the salary or any part thereof. Plaintiff further states that during the ten months beginning the 1st of January, 1933, and ending the 31st day of October, 1933, he was unable to procure any service or employment of the character contracted for by said court as aforesaid and was unable to procure other gainful employment.

"Immediately prior to and up to the 1st day of January, 1933, for a period of two years Sank Parks had been janitor at the courthouse at a salary of sixty dollars per month; that on said December 31, 1933, the following appointments were made: Dr. W. J. Hux, county physician for a term from February 1, 1933, to February 1, 1934, as Deputy State Health Commissioner for the same period and as County Welfare Officer for the same period; Alex Mooney as Superintendent of the County Home for a term from January 1, 1933, to January 1, 1934; Sydney Wilson as County Land Commissioner and Agent for County School Fund Lands for a term from January 1, 1933, to January 1, 1934; all of the foregoing appointments were executed in the form written contracts and entered of record on the records of the County Court proceedings, and that Sank Parks, without any appointment or contract in writing or any court record whatever performed the duties of janitor and caretaker aforesaid and was paid therefor by said county court at sixty dollars per month until the 6th day of March, 1933, when the said court caused to be placed upon its records the following appointment:

"Sank Parks, janitor of the courthouse at a salary of sixty dollars per month to serve until appointment be revoked by the Court; Dr. John Wilson, county physician, Deputy State Health Officer and County Welfare Officer; Alex Mooney, Superintendent of County Home; Geo. M. Barham, County Land Commissioner and Land Agent; all of which appointments were for an indefinite term and subject to be revoked by the Court at any time.

"At the time said new appointments were made by the new Court as last aforesaid no record or any revocation of former appointments as aforesaid was ordered or made. And no revocation since.

"The written instrument attached to plaintiff's petition in this cause and designated by plaintiff as a contract is the written agreement executed by the old court on December 31, 1933, as aforesaid, and was entered into between the said old court and plaintiff as janitor of said courthouse aforesaid."

The contract with plaintiff referred to in the agreed statement of facts, reads:

"CONTRACT

"KNOW ALL MEN BY THESE PRESENTS, that this agreement and contract is entered into by and between Jess Aslin as party of the first part, and the County Court of Stoddard County Missouri, acting on behalf of and for Stoddard County, Missouri, as party of the second part.

"WHEREAS, the County Court of Stoddard County, Missouri, on the 12th day of December, 1932, by its order of record made on said date, did select and employ Jess Aslin as janitor for the courthouse of Stoddard County, Missouri, and the county property known as the Stoddard County Trust Company building for the year 1933, at the monthly salary of $ 50.00 per month payable in County warrants, and

"WHEREAS the said Jess Aslin has accepted said appointment and agreed to perform the duties of said office and employment as janitor in an efficient and workmanlike manner; NOW THEREFORE, in consideration of the aforesaid agreement of the said Jess Aslin to perform the said duties of the said office and employment in said manner, the County Court of Stoddard County, Missouri, acting on behalf of and for Stoddard County, Missouri, does hereby employ and agree...