Coleman v. Kansas City

• Citation: 156 S.W.2d 644,348 Mo. 916
• Decision Date: 30 October 1941
• Docket Number: 37652
• Parties: Robert Coleman, Trustee, v. Kansas City, Missouri, Appellant
• Court: Missouri Supreme Court

156 S.W.2d 644

348 Mo. 916

Robert Coleman, Trustee, v. Kansas City, Missouri, Appellant

No.37652

Supreme Court of Missouri

October 30, 1941

Rehearing Denied December 12, 1941.

Appeal from Jackson Circuit Court; Hon. John F. Cook Judge.

Remanded (with directions).

William E. Kemp and John J. Cosgrove for appellant.

(1) That the budget and appropriation ordinances based thereon appropriating a definite sum of money for salaries for the fiscal year 1938, superseded and, in effect, repealed, the salary schedule of the Administrative Code of 1933, and the amount appropriated for salaries in said appropriation ordinances became the salary schedule for city employees, including plaintiff's assignors, for the fiscal year 1938. Art. IV, Charter of Kansas City; Sec. 122, Art. V of said Charter; Secs. 130 and 131, Administrative Code of Kansas City; Doyle v. St. Paul, 284 N.W. 291; People ex rel. Mulvey v. Chicago, 292 Ill. 589, 12 N.E.2d 13; State ex rel. Ausburn v. Seattle, 190 Wash. 222, 67 P.2d 913; Barfield v. Atlanta, 187 S.E. 407; City of Phoenix v. Kidd, 94 P.2d 429; Shouse v. Board of County Commrs., 99 P.2d 779; People ex rel. v. Schick, 14 N.E.2d 223, 368 Ill. 353; Grad & Son v. City of Newark, 193 A. 177; State ex rel. Anderson v. King, 71 P.2d 370; State ex rel. v. Hoquiam, 56 P.2d 1012; Sand Springs v. Kraus, 72 P.2d 726; Graves v. Purcell, 337 Mo. 574, 85 S.W.2d 543; Layne-Western Co. v. Buchanan County, 85 F.2d 343; Hillig v. St. Louis, 337 Mo. 291, 85 S.W.2d 91; 1 McQuillin on Corps. (2d Rev. Ed.), sec. 356. (a) The assignments executed by plaintiff's assignors were void; plaintiff is not the proper party in interest. He was not legally entitled to bring this action or recover judgment for said assignors in his own name, as trustee. Sec. 476 of the Charter; State ex rel. v. Kent, 98 Mo.App. 281. (2) The court erred in giving judgment for interest on claims of the respective assignors from April 30, 1939, to and including the date of the judgment for the reason that under Section 3226, R. S. 1939, said claims were not of the class entitling them to interest. Simmons Hardware Co. v. St. Louis, 192 S.W. 394; McManus v. Burrows, 206 Mo.App. 528, 230 S.W. 129; McManus v. Burrows, 280 Mo. 327, 217 S.W. 512; Industrial Acceptance Corp. v. Webb, 287 S.W. 657; Coombes v. Knowlson, 193 Mo.App. 554, 182 S.W. 1040; State ex rel. Rothrum v. Darby, 137 S.W.2d 536. (3) The court erred in refusing to give judgment in favor of the defendant in the nature of a setoff against assignors Zachman, Boyle, Connor, Foerster, Bensted, Manning, Hoey, Rabinowitz, McKinney, Quinn, Staveley, Peters, Zammar and Reddish for moneys illegally paid to said assignors over and above their regular code salary. Sec. 471 of the Charter; Sec. 600, Revised Ordinances of Kansas City; Secs. 130, 131 and 132, Administrative Code of Kansas City; Nodaway County v. Kidder, 344 Mo. 795; State ex rel. Evans v. Gordon, 245 Mo. 12; State ex rel. Buder v. Hackmann, 305 Mo. 342, 265 S.W. 532; State v. Weatherby, 344 Mo. 848, 129 S.W.2d 887.

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

(1) Failure of the council to appropriate a sufficient sum for the payment of salaries in full for the fiscal year 1938 is no defense. (a) In previous litigation the city has taken the position that the budget and annual appropriation ordinance do not have the effect of repealing or superseding the salary ordinance or determining the amount or extent of liability. City's brief in First National Bank of Kansas City Trustee, v. Kansas City, Missouri, No. 466876 (Circuit Court of Jackson County, Mo., at Kansas City); City's contentions in Robert Coleman, Trustee, v. Kansas City, Missouri, No. 468300 (now under advisement), in Circuit Court of Jackson County, Mo., at Kansas City. (b) The Charter requires that salaries of all officers and employees be established by ordinance. Sec. 122, Art. V, of the Charter; Sec. 470, Art. XX, of the Charter. This court, in State ex rel. Rothrum v. Darby, 345 Mo. 1002, 137 S.W.2d 532, held that Rothrum's salary was established and fixed by the salary ordinance now challenged by appellant and declined to follow appellant's contentions as to the budgetary provisions of its charter or insufficiency of appropriations or insufficiency of revenue. (c) The charter provisions for a budget and annual appropriation ordinance do not and are not intended to deal with the establishment of salaries of city officials and employees. The budgetary provisions have an entirely different function. They are designed to require city officials, including the council, to lay out in advance the character and amount of proposed expenditures and thus insure the public against a haphazard day-to-day financial policy. Secs. 84 to 90, Art. IV, of the Charter. (d) The provision of the charter addressed to the council enjoining it not to appropriate more than the total estimated revenue does not limit the appropriations to the amount collected during the fiscal year, but estimated revenue means the full amount of revenue provided and if an appropriation within the limits of the revenue provided is made, failure to collect such revenue does not render the indebtedness illegal or invalid. State ex rel. Clark County v. Hackmann, 280 Mo. 686, 218 S.W. 318; State ex rel. Rothrum v. Darby, 345 Mo. 1002, 137 S.W.2d 532. (e) The charter provision respecting limitation of liability on contractual obligations to the amount appropriated therefor expressly excluding personal services demonstrates unsoundness of appellant's contention. Sec. 92, Art. IV, of the Charter. (f) The charter provisions requiring the Director of Finance to examine all payrolls and draw no warrants unless the amounts are properly computed and justly and legally payable from the appropriation to which it is to be charged do not impose limitation of liability. Those provisions are addressed to the disbursing officers to insure that they will not pay out the city's funds or issue warrants unless authorized to do so pursuant to an appropriation. Secs. 91 and 93, Art. IV, of the Charter; Geddes v. United States, 38 Ct. Cl. 428; United States v. Langston, 21 Ct. Cl. 10, 118 U.S. 389, 6 S.Ct. 1185; Collins v. United States, 15 Ct. Cl. 23. (g) The charter provisions providing for an annual budget and appropriation ordinance do not conflict with charter provisions requiring the establishment of salaries by salary ordinance. They are to be construed together. Until repealed the salary ordinance binds the council the same as other city officials. Until repealed the amount required for payment of salaries is by law deemed to be in each annual budget and appropriation ordinance. Gill v. Buchanan County, 142 S.W.2d 665. (h) The construction of laws by the legislative body, though not controlling, is entitled to great weight. State ex rel. Wayland v. Herring, 208 Mo. 708, 106 S.W. 984; State ex inf. Gentry v. Long-Bell Lbr. Co., 12 S.W.2d 64. The interpretation of the ordinances, as shown by subsequent acts of the city council, is highly persuasive. State ex rel. St. Louis Police & Relief Assn. v. Igoe, 340 Mo. 1166, 107 S.W.2d 929; Drainage Dist. v. Hetlage, 231 Mo.App. 355, 102 S.W.2d 702. The contemporaneous construction of those charged with the duty of executing these ordinances is "determinately persuasive" in establishing intent. State ex rel. McAllister v. Cupples Station L. H. & P. Co., 283 Mo. 115, 223 S.W. 75. (i) To the extent that any question of fact is involved as to the intent of the council in passing the annual appropriation ordinance, such finding of fact by the trial court is binding and will not be disturbed on appeal. St. Louis-S. F. Ry. Co. v. Dillard, 328 Mo. 1154, 43 S.W.2d 1034; Bryant v. Bryant, 50 S.W.2d 103; Bell v. Barrett, 76 S.W.2d 394; Brooks v. Roberts, 281 Mo. 551, 220 S.W. 11; Cronacher v. Runge, 98 S.W.2d 603; Frazier v. Shantz Real Estate & Inv. Co., 243 Mo. 861, 123 S.W.2d 124. (j) Failure to appropriate or insufficiency of appropriation is of no legal significance and does not affect liability of the city, county, state or nation unless specifically so provided by the basic law (Charter or Constitution) or unless the appropriation act examined in its four corners and properly interpreted and construed has the effect of repealing and amending the prior act fixing salaries. United States v. Langston, 21 Ct. Cl. 10, affirmed 118 U.S. 389, 6 S.Ct. 1185; Miller v. United States, 86 Ct. Cl. 609; Strong v. United States, 60 Ct. Cl. 627; Magner v. St. Louis, 179 Mo. 495, 78 S.W. 782; State ex rel. Mulvoy v. Miller, 315 Mo. 41, 285 S.W. 504; State ex rel. Hill v. Thatcher, 230 Mo.App. 1125, 94 S.W.2d 1053. (2) The assignments are valid and respondent has legal right to maintain the suit as trustee. (a) Sec. 476, Art. XX, of the Charter, does not prohibit an assignment of a salary claim to a trustee for the sole and exclusive benefit of the assignor, which assignment is made for the purpose of enabling the salary claims of numerous officials and employees being joined in a single suit so as to prevent a multiplicity of suits and the attendant burden and expense. Sec. 476, Art. XX, of the Charter; Sec. 850, R. S. 1939; State ex rel. v. Kent, 98 Mo.App. 281, 71 S.W. 1066; Greggers v. Gleason, 299 S.W. 633. (3) The allowance of interest is not reviewable. (a) No contention was raised below as to the propriety of allowing interest on the unpaid salary from the end of the fiscal year in which the same became due and payable to the date of judgment. Appellant requested no finding of fact or declaration of law with respect to interest. It did not in its motion for new trial assign the allowance of interest as error. It did not at any time bring its present contention to the attention of the trial court. ...