Bassler v. Gordon

• Decision Date: 12 February 1927
• Docket Number: 27,110
• Citation: 253 P. 228,122 Kan. 692
• Parties: C. E. BASSLER, Appellant, v. W. W. GORDON, as Mayor, etc., THE CITY OF KANSAS CITY et al., Appellees
• Court: Kansas Supreme Court

253 P. 228

122 Kan. 692

C. E. BASSLER, Appellant, v. W. W. GORDON, as Mayor, etc., THE CITY OF KANSAS CITY et al., Appellees

No. 27,110

Supreme Court of Kansas

February 12, 1927

Decided January, 1927.

Appeal from Wyandotte district court, division No. 3; WILLIAM H MCCAMISH, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

MUNICIPAL CORPORATIONS--Wrongful Removal of Dairy Inspector--Part of Salary Paid to De Facto--Liability of City. A civil service employee in the department of health and sanitation of Kansas City was wrongfully excluded from his employment as dairy inspector and was subsequently reinstated. In a proceeding to recover salary for the period during which he was excluded, the district court held the city did not owe him the amount of salary which it paid to dairy inspectors appointed in his place according to civil service regulations, deducted from the unexpended balance of the salary the amount of plaintiff's net earnings during the period of exclusion, and rendered judgment accordingly. Held, the judgment should be affirmed.

E. E. Martin, of Kansas City, for the appellant.

William Drennan, Willard M. Benton and Joseph A. Lynch, all of Kansas City, for the appellees.

OPINION

BURCH, J.:

The proceeding was one by a civil service employee in the health department of the city of Kansas City, to recover from the city salary for a period during which he was excluded from employment by wrongful removal. The court held he could not recover that part of the salary which had been paid to employees appointed in his place according to civil service rules, and the court offset against the unexpended portion of the salary net earnings of plaintiff during the period of exclusion. The result was, judgment was rendered for defendants. Plaintiff appeals.

The proceeding was a sequel to the decision of this court in the case of Bassler v. Gordon, 119 Kan. 40, 237 P. 907, which had the effect of procuring plaintiff's reinstatement. The nature of plaintiff's position, whether officer or employee, the reason assigned by the mayor and commissioners for his removal, the legal insufficiency of that reason, and the consequent invalidity of plaintiff's exclusion from employment, were discussed in the opinion. For the present purposes it may be conceded, without so deciding, that the mayor and commissioners acted arbitrarily. The removal was a nullity in law, and the question here is reparation.

In passing the resolution discontinuing employment of plaintiff and in enforcing compliance with the resolution, the mayor and commissioners acted in a governmental capacity. No private proprietary interest of the city was involved. The position was created to promote the public welfare, and the incumbent was required to work under, report to, and be under the direction of the commissioner of health and sanitation. Although the mayor and commissioners abused their power in making the removal, the principle of respondeat superior does not apply, and the city is not liable in damages for their misfeasance. (Edson v. Olathe, 82 Kan. 4, 107 P. 539.) Recovery is necessarily predicated on breach of the implied contract of the city to pay the employee the compensation assigned by ordinance to the position. (State, ex rel., v. Hannon, Mayor, 38 Kan. 593, 17 P. 185.)

During a portion of the period plaintiff was wrongfully excluded from employment, dairy inspectors were regularly appointed according to civil service requirements, discharged the duties of the position, and received the salary. Such appointments gave color of title to the position, and the appointees sustained a relation to proprietors of dairies the commissioner of health and sanitation, the fiscal officers of the city, and the general public, which made them de facto dairy inspectors. If those persons had been public officers, payment of salary to them would have satisfied the city's obligation, and plaintiff could not recover from the city the salary so paid. (Comm'rs of Saline Co. v. Anderson, 20 Kan. 298.) In grade, plaintiff's employment lay between an office and a minor position governed by the principle, no work no pay. Civil service law gave plaintiff a certain security of tenure which took him out of the inferior class, but did not place him among those classified as officers. The public, however, had the same interest in performance of the duties of dairy inspector as if the incumbent of the position were an officer. The general...