Dickerson v. City of Butler

• Decision Date: 06 June 1887
• Citation: 27 Mo.App. 9
• Parties: JOHN B. DICKERSON, Appellant, v. THE CITY OF BUTLER, Respondent.
• Court: Kansas Court of Appeals

27 Mo.App. 9

JOHN B. DICKERSON, Appellant, v. THE CITY OF BUTLER, Respondent.

Court of Appeals of Missouri, Kansas City.

June 6, 1887

APPEAL from Bates Circuit Court, HON. JAMES B. GANTT, Judge.

Affirmed.

The case is stated in the opinion.

THOS J. SMITH, for the appellant.

I.The itemized account in favor of appellant, and against respondent, and which is the foundation of this action, is in words and figures, as follows:

BUTLER MO., Oct. 8, 1885.

CITY OF BUTLER, TO J. B. DICKERSON, DR.

1885.

July. To one month's salary as marshal, July, 1885 $ 50 00

Aug To serving twenty-one notices 3 30

Having two dead hogs and cat hauled off 1 00

Four meals for Frank Wheaton 68

One meal for Wash Morgan 15

One tin bucket for calaboose 25

Twenty meals for Barney Cooper 3 30

Aug. One meal for Charley Munder 15

One month's salary as city marshal, Aug. 1885 50 00

18 Nails to repair calaboose fence 10

$111 93

Sept. One month's salary as city marshal, Sept. 1885 50 00

18 Boarding John Crouch, nine meals 1 50

30 Boarding Frank Wheaton, five meals 85

Total $164 28

Oct. To two months' services as city marshal, Oct. and Nov. 1885 $100 00

Oct. 7 Having dead hog hauled off 35

Oct. 24 Serving three sidewalk notices 90

Nov. 11 Hauling off one dead hog 30

Three days' services in Dec. 1885, to 4th 5 00

$106 55

Brought forward 164 28

Total amount of account $270 83

II.In answer to the position of respondent's attorneys that the appellant had no certificate of election, because, as claimed, the county clerk had no authority to certify the result of a city election, it is thought to be only necessary to say the respondent accepted and acted upon the certificate, and ought not now to be heard to say it was not sufficient.Again, can the court say that this was not the manner of making returns of elections, which respondent had prescribed by ordinance, under section 4933, Revised Statutes.The certificate is from the same officer as the one under which J. H. Morgan, in whose interest it would appear this action is being defended, was permitted by respondent to qualify.The contention of respondent that appellant had never taken the oath of office, even if that were necessary, which it is contended is not (laws of that character being held to be directory only), is sufficiently answered by comparing section 3326, Revised Statutes, prescribing who may administer oaths, with Bouvier's definition of " Judge," which word is there defined to be, " A public officer, lawfully appointed to decide litigated questions according to law."In this connection, the appellant begs to refer also to sections 4982and4987, Revised Statutes.It will be seen from section 3326, supra, that the mayor, if authorized to administer oaths in his own court, that he is also authorized " to administer oaths and take affidavits * * * in all cases where oaths and affirmations are required, by law, to be taken."The contention that appellant had no commission is answered by examination of extract from city record made by respondent, of date April 16, 1885.

III.The only Missouri case, it is believed, which respondent's counsel rely on in support of the proposition that the title to an office may be litigated in an action by the claimant thereof for fees, is Hunter v. Chandler(45 Mo. 452).Appellant respectfully submits this case is an authority against respondent's contention.In this opinion, Judge Wagner says: " I am aware that there are respectable authorities holding that title to an office may be determined in a suit for fees.The old English cases strongly sustain this view, but I think the better doctrine and reason is to the contrary."If the mass of authorities cited by respondent's counsel, and the " " volumes written in vain" referred to by them, sustain the doctrine contended for by them, they are not in harmony with the decisions in this state, an unbroken chain of which is believed to be to the contrary.

W. G. ROSE, JOHN T. SMITH, GANTT & CASEY, for the respondent.

I.Appellant cannot recover in this cause; his petition states no cause of action, and his judgment must have been arrested, had he obtained judgment below.Having alleged he was a " de facto " marshal only, he cannot maintain action for salary or fees.Riddle v. Bedford County,7 Serg. & Rawle, 386;Keyser v. McKisson,2 Rawle 139;Bowler v. Beebe,9 Mass. 231;People v. Hopson,1 Denio 574-579;People v. Van Nostrand,46 N.Y. 382;People v. Tieman,30 Barb. 191;Hunter v. Chandler,45 Mo. 456;Comstock v. Grand Rapids, etc.,40 Mich. 397;Nichols v. McLean,101 N.Y. 526;People ex rel. v. Noland,101 N.Y. 547;Cent. Rep. 462, 500;5 N.E. 347, 446;Green v. Burke, 23 Wendell 490;Cro. Elz. 699;McCue v. Wapello County,56 Iowa 698;Dolan v. Mayor, etc.,68 N.Y. 279.

II.The certificate of the county clerk was and is a nullity, and conferred no authority on the mayor and aldermen to recognize appellant as marshal.The clerk could only grant certificates to the officers named in section 5480, being those elected at the general November elections.Sects. 5505and5506.Such a certificate does not " prima facie " show any title to the office.

III.The oath said to have been administered to J. B. Dickerson, by the mayor, was also without authority of law, and nugatory.No authority is conferred on mayors of cities of the fourth class to administer oaths or affirmations, either by the general statutes, section 3326, or by charter of such cities.Holding an inferior statutory office, his power is strictly construed, and will not be extended by implication or construction, especially where not necessary to the performance of his duty.

IV.Appellant having no commission, no certificate of election from the clerk of the city, no canvass of the votes for marshal having been made, no oath of office having been taken by him, before any officer authorized to take the same, was not an officer " de jure, " was not even " prima facie " such.Const. of Mo. art. 14, sect. 6;Rev. Stat., sects. 4959,4970;People ex rel. v. McKinney,52 N.Y. 374.

V.The plaintiff's petition was filed October 14, 1885.The account was not due till December 4, 1885, and his action is prematurely brought.It was a running account.Plaintiff must recover, if at all, on an account due and unpaid.This is elementary, and respect for the court forbids citation of authority.

HALL J.

There are serious, if not fatal, objections made by the defendant to this controversy being considered by us as having been submitted as an agreed case, under section 3700, Revised Statutes.But, under the view of the law applicable to this controversy had by us, we do not deem it necessary to pass upon such objections, and we yield, therefore, to the plaintiff's contention, and shall consider this controversy as having been submitted to the circuit court, as an agreed case, under the statute, on December 22, 1885.

From July to December 4, 1885, the plaintiff was acting, under color of right, as marshal of the defendant city, during which time one Morgan claimed...