Edwards v. City of Kirkwood

• Decision Date: 09 January 1912
• Citation: 162 Mo. App. 576,142 S.W. 1109
• Parties: EDWARDS v. CITY OF KIRKWOOD.
• Court: Missouri Court of Appeals

142 S.W. 1109

162 Mo. App. 576

EDWARDS v. CITY OF KIRKWOOD.

St. Louis Court of Appeals. Missouri.

January 9, 1912.

Rehearing Denied February 6, 1912.

1. MUNICIPAL CORPORATIONS (§ 162)—OFFICERS —COMPENSATION—"CITY ATTORNEY."

Employment as city attorney includes services rendered in connection with a special tax matter and compensation as city attorney covers such services, and the city collector may not contract with him for additional compensation for services in such matter.

2. MUNICIPAL CORPORATIONS (§ 124)—ORDINANCES—CONFLICTS WITH GENERAL LAWS.

An ordinance of a city which authorizes the mayor, with the approval of the board of aldermen, to appoint a city attorney, who shall hold office for one year at an annual salary payable in monthly installments, is not in conflict with Rev. St. 1909, § 9310, authorizing the mayor, with the consent of the board of aldermen, to remove from office any appointive officer at will, and the ordinance and statute may stand together, and under them the mayor, with the consent of the board, may remove the city attorney at will.

3. MUNICIPAL CORPORATIONS (§ 111)—ORDINANCES—CONFLICT WITH GENERAL STATUTES.

Unless there is such a repugnancy between a statute and an ordinance as to render the latter void, the courts will not declare it void, and, where both can stand together, the court must so construe them that they will stand in harmony.

4. MUNICIPAL CORPORATIONS (§ 162)—OFFICERS—APPOINTMENT—DE FACTO OFFICERS.

Where an attorney was paid the salary of city attorney and referred to himself as the successor in office of the preceding city attorney, that he failed to take the oath of office, notwithstanding Rev. St. 1909, § 9323, providing that, where an appointee fails to take the oath of office, his office shall be deemed vacant, did not prevent him from being a de facto officer, so as to preclude a claim of additional compensation for services in a special tax matter, rendered pursuant to a contract with the city collector.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Action by George L. Edwards against the City of Kirkwood. From a judgment for defendant, plaintiff appeals. Affirmed.

Geo. L. Edwards, pro se. Robt. C. Powell, for respondent.

REYNOLDS, P. J.

This case was heretofore before this court on appeal of plaintiff from a decision of the circuit court of the county of St. Louis, sustaining a demurrer to the amended petition. At that time the city of Kirkwood and Mr. Pagenstecher, its collector, were defendants. We held that the demurrer had been properly sustained as to the collector, but that it had been improperly sustained as to the city. The case was accordingly reversed and remanded that it might proceed against the city alone. The opinion of our court will be found reported under the title Edwards v. City of Kirkwood et al., 147 Mo. App. 599, 127 S. W. 378. The case then went to trial upon the same amended petition that had been passed on by our court. The city answered, denying any obligation and pleading certain ordinances in bar. To this a reply was interposed which, among other matters, set up that an ordinance pleaded was inconsistent with section 5904, R. S. 1899, now section 9310, R. S. 1909. The case was tried by the court, a jury being waived, evidence heard, all instructions asked by plaintiff refused, and a finding and judgment "for defendants," court and counsel apparently overlooking the fact that the collector was out of the case. From this plaintiff perfected his appeal, having duly saved exceptions to the various adverse rulings of the court both in the admission and exclusion of evidence and in overruling his motion for a new trial.

While counsel for appellant makes six assignments of error he has briefed and argues only two propositions: First, that defendant had the power to enter into the contract sued upon with plaintiff and even if that contract had been defectively executed, plaintiff is entitled to recover thereon to the extent of services rendered under the contract. Second, that defendant has wholly failed to show that plaintiff at the time of making the contract sued upon and during the period of performance thereof, was the city attorney of defendant.

The power of the collector to enter into the contract with plaintiff depends not only upon the question as to whether plaintiff, at the time of that appointment, was the city attorney of Kirkwood, but as to whether the contract made was within the power conferred upon the collector. If plaintiff, when employed by the collector, was city attorney, then the collector had no power to enter into the contract with him, for his employment as city attorney must be held to include the services which he claimed to have rendered in connection with this special tax matter, and his compensation as city attorney must be held to cover that employment. The city of Kirkwood is a city of the fourth class, organized under what is now article 5, c. 84, R. S. 1909. Section 9313 of the revision of 1909, which was section 5907, R. S. 1899, as amended in 1903 (see Laws of 1903, p. 81), in defining the powers and duties of the mayor and board of aldermen, and after vesting them with power to appoint a city attorney, proceeds: "And if deemed for the best interests of the city, the mayor and board of aldermen may, by ordinance, employ...