Coleman v. Kansas City

• Decision Date: 07 June 1943
• Docket Number: 38151,38152
• Parties: Robert J. Coleman, Trustee, Respondent and Cross-Appellant, v. Kansas City, a Municipal Corporation, Appellant and Cross-Respondent
• Court: Missouri Supreme Court

173 S.W.2d 572

351 Mo. 254

Robert J. Coleman, Trustee, Respondent and Cross-Appellant, v. Kansas City, a Municipal Corporation, Appellant and Cross-Respondent

Nos. 38151, 38152

Supreme Court of Missouri

June 7, 1943

Motion for Rehearing or to Transfer to Banc in Per Curiam Opinion Overruled July 6, 1943.

Appeal from Jackson Circuit Court; Hon. Ben Terte, Judge.

Affirmed.

William E. Kemp, City Counselor, Arthur R. Wolfe and John J. Cosgrove, Assistant City Counselors, for Kansas City, appellant.

(1) The charter of Kansas City limits the power of the city to become indebted for any purpose in excess of the amount appropriated by the council for such purpose, and the appropriations for salaries, having become exhausted in each fiscal year, the employees herein are not entitled to recover in this action. Secs. 77-99, inclusive, Art. IV, Charter of Kansas City; Sec 123, Art. V, Kansas City; Sec. 46, Art. XI of the Administrative Code of Kansas City; Sec. 6, Art. II, Charter of Kansas City; State ex rel. Rothrum v. Darby, 345 Mo. 1002, 137 S.W.2d 532; Coleman v. Kansas City, 348 Mo. 916, 156 S.W.2d 644; Sec. 6295, R. S. 1939; State v. Weatherby, 344 Mo. 848, 129 S.W.2d 887; Sec. 19, Art X, Mo. Constitution; Thatcher v. St. Louis, 343 Mo 597, 122 S.W.2d 915; Missouri-Kansas Chemical Corp. v. New Madrid County, 345 Mo. 1167, 139 S.W.2d 457; Jensen v. Wilson Township, 346 Mo. 1199, 145 S.W.2d 372; Mister v. Kansas City, 18 Mo.App. 217; Wolcott v. Lawrence County, 26 Mo. 272; State ex rel. McKinley v. Hackmann, 314 Mo. 33, 282 S.W. 1007; State ex rel. Tolerton v. Gordon, 236 Mo. 142, 139 S.W. 403; Shouse v. Board of County Commissioners, 151 Kan. 458, 99 P.2d 779; Graves v. Purcell, 337 Mo. 574, 85 S.W.2d 543; Traub v. Buchanan County, 341 Mo. 727, 108 S.W.2d 340; Layne-Western Co. v. Buchanan County, 85 F.2d 343; Gill v. Buchanan County, 346 Mo. 599, 142 S.W.2d 665; City of Sand Springs v. Kraus, 181 Okla. 6, 72 P.2d 726; City of Phoenix v. Kidd, 54 Ariz. 123, 94 P.2d 428; Nodaway County v. Kidder, 344 Mo. 75, 129 S.W.2d 857. (2) The assignors herein, and the employees, as a whole, by their acquiescence over a long period of years, in the policy of pay reductions, and their long delay in asserting any claim with respect thereto, induced the defendant to believe that no such claim would ever be asserted and the defendant, relying thereon, changed its position to its serious detriment, and hence the assignors in this suit, by reason of their laches, are estopped from asserting their claims herein, except for the last four months of the fiscal year 1938. Rothrum v. Darby, 345 Mo. 1002, 137 S.W.2d 532; Randolph v. Moberly Hunting Club, 321 Mo. 995, 15 S.W.2d 834; Galbreath v. City of Moberly, 80 Mo. 484; 19 Am. Jur., p. 668; People v. Chicago, 292 Ill.App. 589, 12 N.E.2d 13; Paducah v. Gillespie, 273 Ky. 101, 115 S.W.2d 574; People ex rel. Hollie v. Chicago Park District, 296 Ill. 365, 16 N.E.2d 161; Glaser v. City of Burlington, 231 Iowa 709, 1 N.W.2d 709; Connor v. City of Chippewa Falls, 279 N.W. 640; State ex rel. Hess v. City of Akron, 56 Ohio App. 28, 10 N.E.2d 1; Allenberg v. City of Superior, 280 N.W. 342; Pratts v. City of Duluth, 289 N.W. 788; Love v. Mayor of Jersey City, 40 N. J. L. 456; Lazinski v. New York, 148 N.Y.S. 808; 31 C. J. S. 347-362; 17 Am. Jur. 892; Gulf Railroad Co. v. Sullivan, 119 So. 501; Bartlett v. Richardson & Co., 27 Ohio App. 263, 161 N.E. 403; McCormack v. St. Louis, 166 Mo. 315; Wood v. Telephone Co., 223 Mo. 537; Morgan v. Joy, 121 Mo. 677, 26 S.W. 670; McCoy v. McMahon Construction Co., 216 S.W. 770; United States Banking Co. v. Veale, 84 Kan. 385, 114 P. 299; Steele v. City of Chattanooga, 84 S.W.2d 590; 1 R. C. L. 319. (3) The court erred in refusing to admit evidence that if the defendant were required at this late date to pay an amount substantially equal to the salary claims asserted by city employees, the credit of the city would be seriously impaired. 31 C. J. S., pp. 868-874; Burglass v. Wright, 159 So. 176; School District v. Sheidly, 138 Mo. 672, 40 S.W. 656; Fried v. Fisher, 196 A. 39; Goldberg v. Cities Service Oil Co., 366 N.W. 321; Fulton v. Kansas City Life Ins. Co., 148 S.W.2d 581; Moul v. Thompson, 14 P.2d 1004. (4) Plaintiff, by his cross-examination on matters that were excluded upon plaintiff's objection, waived his objection thereto and made said evidence competent. Hunter v. Helsely, 98 Mo.App. 616; St. Louis Railroad Co. v. Plate, 92 Mo. 614; Scott v. Union Planters Bank, 130 S.W. 757. (5) In allowing interest on said claims from the date of filing suit therefor, all for the reason that the claims of plaintiff's assignors herein, are not recoverable at common law and are not of the class or character named in Section 3226, R. S. 1939, or in any other statute of the State for which interest is recoverable. Sec. 3226, R. S. 1939; Simmons Hardware Co. v. St. Louis, 192 S.W. 394; King v. Riverland Levy Dist., 218 Mo.App. 490, 279 S.W. 195; 1 Words & Phrases, pp. 534, 535; McManus v. Burrows, 206 Mo.App. 528, 230 S.W. 129; 37 C. J., p. 786, sec. 126; 2 McQuillin, Mun. Corps. (2 Ed.), sec. 534; Givens v. Daviess Co., 107 Mo. 603, 17 S.W. 998; State ex rel. Chapman v. Walbridge, 153 Mo. 194, 54 S.W. 447; Gambrel v. City of Sacramento, 110 P.2d 530; Griffin v. County Clay, 63 Iowa 413, 19 N.W. 327; Coleman v. Kansas City, 156 S.W.2d 644; Thompson v. School District, 71 Mo. 495; State ex rel. Rothrum v. Darby, 345 Mo. 1002, 137 S.W.2d 532. (6) Matthew S. Murray, assignor in Count 103, in May, 1935, while holding a city office, accepted employment under the Federal Government and held a Federal Office from May, 1935 to November, 1939, contrary to the Constitution of the State of Missouri and to the city charter. When he entered upon the duties of the Federal office, the city office, which he was then holding, was vacated as a matter of law. Sec. 18, Arts. II, IV, Missouri Constitution; Sec. 127, Kansas City Charter; State v. Wiggins, 208 Mo. 622, 106 S.W. 1005; St. Louis v. Brandis Coal Co., 137 S.W.2d 668; St. Louis v. Christian Brothers College, 257 Mo. 541, 165 S.W. 1057; State ex rel. Sewer District v. Smith, 115 S.W.2d 816. (7) Under the common law the said Murray could not lawfully occupy and hold these two offices concurrently for the reason that the duties of said two offices were incompatible. 2 McQuillin on Municipal Corporations (2 Ed.), sec. 469; State v. Draper, 45 Mo. 355; State ex rel. v. Walbridge, 153 Mo. 194, 54 S.W. 447; Gracey v. St. Louis, 213 Mo. 384, 111 S.W. 1159; State ex rel. Langford v. Kansas City, 261 S.W. 115; Bradley v. Page, 46 S.W.2d 208; State v. Yager, 250 Mo. 388, 157 S.W. 557. (8) 110 of the assignors in the instant suit joined with others in a suit brought by the First National Bank of Kansas City, as trustee, for the recovery of unpaid salaries for the months of January, February, March and April, 1939, in which suit judgment was rendered against the city and was paid, said 110 assignors herein thus having split their cause of action, if any they had, and are thereby barred from recovery in the instant suit. Grant v. Parker-Russell Mining Co., 65 S.W.2d 143; Sprinkle v. Fleming's Estate, 209 Mo.App. 405, 239 S.W. 899; Tooker v. Mo. Power Co., 336 Mo. 592, 80 S.W.2d 691; 1 C. J., 1112, sec. 287; 1 C. J. S., p. 1313, sec. 102; p. 1326, sec. 103; 1 Am. Jur., 490, sec. 109; 1 R. C. L., 153, sec. 32; Wheeler Savings Bank v. Tracey, 141 Mo. 252, 42 S.W. 946; Guettel v. United States, 95 F.2d 229.

William G. Boatright, Harry L. Jacobs and James Daleo for respondent.

(1) When in actions at law, tried to the court without a jury statutory findings of fact are requested and made, the same have the legal effect of special verdicts. Therefore, appellant's assignments of error to the refusal of the court to find facts in accordance with its contentions present nothing for review. Sec. 1103, R. S. 1939; In re Lankford's Estate, 272 Mo. 1, 197 S.W. 147; Steffen v. St. Louis, 135 Mo. 44, 36 S.W. 31; Grand Lodge v. Insurance Co., 324 Mo. 938, 25 S.W.2d 783; State ex rel. v. Shain, 343 Mo. 66, 119 S.W.2d 971; Hughes v. Ewing, 162 Mo. 261, 62 S.W. 465; Conley v. Crown Coach Co., 159 S.W.2d 281. (2) Appellant's liability for salaries of its officers and employees, either under its charter or under general legal principles, is not limited to lump sum amounts appropriated for such purpose in each fiscal year. This same contention, based on the same charter provisions, has twice been ruled adversely to appellant. State ex rel. Rothrum v. Darby, 345 Mo. 1002, 137 S.W.2d 532; Coleman v. Kansas City, 156 S.W.2d 644. (3) The charter requires salaries to be fixed by ordinance and they were so fixed at all times involved. Sec. 122, Art. V, Charter; Sec. 470, Art. XX, Charter; Administrative Code, 1926; Administrative Code, 1933. (4) Charter provisions for a budget and an annual appropriation ordinance do not and are not intended to deal with the fixing of salaries of officials and employees. They are designed to require the council to lay out the expenditures in advance and after taking into consideration fixed and current operating expenses to spend no more during the fiscal year for other purposes than the balance of the revenue provided will permit. Secs. 84-90, inclusive, Art. IV, Charter; State ex rel. Clark County v. Hackmann, 280 Mo. 686, 218 S.W. 318; State ex rel. Rothrum v. Darby, supra; Coleman v. Kansas City, supra; Gill v. Buchanan County, 346 Mo. 599, 142 S.W.2d 665; Abramson v. Hard, 155 So. 590. (5) The charter provision expressly limiting contractual liability for supplies, materials and equipment to the amount appropriated for such purpose and expressly excluding personal services demonstrates a charter distinction and the fallacy of appellant's contention. Sec. 92,...