Galvin v. Kansas City, Missouri, 19126.

• Decision Date: 05 December 1938
• Docket Number: No. 19126.,19126.
• Citation: 122 S.W.2d 379
• Parties: ED. GALVIN, JR., APPELLANT, v. KANSAS CITY, MISSOURI, RESPONDENT.
• Court: Missouri Court of Appeals

122 S.W.2d 379

ED. GALVIN, JR., APPELLANT, v. KANSAS CITY, MISSOURI, RESPONDENT.

No. 19126.

Kansas City Court of Appeals. Missouri.

December 5, 1938.

Appeal from Jackson Circuit Court. — Hon. Emory Wright, Judge.

AFFIRMED.

John F. Cell for appellant.

The salary of plaintiff having been fixed by city ordinance during the period of his employment, it did not lie "in the mouths" of its other administrative officers "to say that they should work for less. He could not contract with them to do so, for their right to compensation was fixed by law, the same as his own, and did not rest upon contract." And therefore, no waiver or estoppel — a species of contract — could be made by said city, denying plaintiff his rights according to law. Orthwein v. City of St. Louis, 178 S.W. 87, l.c. 89; Bates v. St. Louis, 153 Mo. 18, 54 S.W. 439; State v. Walbridge, 153 Mo. 194, 54 S.W. 447; Glaney v. United States, 182 U.S. 595, 21 Sup. Ct. 891; Miller v. United States, 103 F. 413; Bodenhofer v. Hogan, 142 Iowa, 321, 134 A.S.R., 418, 120 N.W. 659, 19 Ann. Cas. 1037; Gallaher v. Lincoln, 63 Nebr. 339, 88 N.W. 505; Nelson v. Superior, 109 Wis. 618, 85 N.W. 412; Rettinghouse v. Ashland, 106 Wis. 595, 83 N.W. 555; People ex rel. Satterlee v. Board of Police, 75 N.Y. 38; Grant v. Rochester, 79 App. Div. 460, 80 N.Y.S. 522; affirmed 175 N.Y. 473, 67 N.E. 1083; Golding v. N.Y., 76 N.Y.S. 1020; Rhodes v. Tacoma, 97 Wash. 341, 166 Pac. 647; Galpin v. Chicago, 269 Ill. 27, 109 N.E. 713; State ex rel. Kercheval v. Nashville, 15 Lea (Tenn.) 697, 54 Am. Rep. 427; Purdy v. Independence, 75 Iowa, 356, 39 N.W. 641; Pittsburgh v. Goshorn, 230 Pa. 212, 79 Atl. 505; Hoffman v. Chippewa, 77 Wis. 214, 8 L.R.A. 781, 45 N.W. 1083; Crutcher v. Johnson County, 79 S.W. (2d) 932, l.c. 933 (Texas Civ. App.); Russell v. Cordwent (Tex. Civ. App.), 152 S.W. 239; Pitsch v. Bank, 305 Ill. 265, 137 N.E. 198; Wolf v. Humboldt Company, 36 Nev. 26, 131 Pac. 964; Ohio Bank v. Hopkins, 8 App. D.C. 146; Settle v. Sterling, 1 Idaho, 258; Nortonville v. Woodward, 191 Ky. 730, 231 S.W. 224; Abbott v. Hayes, 78 Nebr. 729, 111 N.W. 780; State ex rel. Bill v. Elting, 29 Kan. 399; Kehn v. State, 93 N.Y. 291; Francis v. Leavy, 21 Pac. (2d) 979, 131 Cal. App. 620; Whiting v. United States, 35 Ct. Cl. 291; People v. Board of Auditors, 41 Mich. 4, 2 N.W. 180; Clark v. State, 142 N.Y. 101, 36 N.E. 817; Moore v. Nation, 80 Kan. 672; Pitt v. Board of Education, 216 N.Y. 304; Moore v. Board of Education, 121 App. D. 862, 106 N.Y.S. 983; affirmed 195 N.Y. 614, 89 N.E. 1105; McGrade v. New York, 126 App. D. 362, 110 N.Y.S. 517; Carman v. New York, 140 N.Y.S. 1023; Bishop v. City of Omaha, 264 N.W. 447; City of Louisville v. Fisher, 258 Ky. 84, 79 S.W. (2d) 345; Peterson v. City of Parsons, 139 Kan. 701, 33 Pac. (2d) 715; Myers v. City of Calipatria (Cal.), 35 Pac. (2d) 377; Heil v. Mayor and Board of Commissioners of City of Wildwood, 11 N.J. Misc. 171, 164 Atl. 868; Bell v. Town of Mabton (Wash.), 5 Pac. (2d) 514. The fact that plaintiff was not an officer within the technical meaning of the term "officer" does not change the general rule. Riley v. Mayor, etc., of New York, 96 N.Y. 331; Francis v. Leavy, 21 Pac. (2d) 979, 131 Cal. App. 620.

Fred Bellemere, City Counselor, Marcy K. Brown, Jr., and Arthur R. Wolfe, Ass't City Counselors, for respondent.

(1) The court did not err in overruling plaintiff's motion for judgment on the pleadings and, upon plaintiff's refusal to plead further, in dismissing plaintiff's petition and rendering judgment for defendant, because (a) since appellant was not a public officer but was employed at will, the matter of salary reduction was legal and justified; (b) it is the duty of the city to live within its revenue and the matter of salary reduction employed to attain this end, under circumstances of depression and lack of revenue, was the only reasonable method and did not violate any charter or ordinance provision; (c) the leave of absence signed by appellant was legal and binding; (d) the leave of absence signed by appellant constituted a legal donation of that portion of his salary and services to the city; (e) the fact constituted a complete waiver by appellant and a complete estoppel of any right to collect any further compensation. State ex rel. v. Simmons Hardware Company, 109 Mo. 118, 18 S.W. 1125; Cammann v. Edwards, 100 S.W. (2d) 946, l.c. 850; Barfield v. City of Atlanta (Ga.), 187 S.E. 407; Steele v. City of Chattanooga (Tenn.), 84 S.W. (2d) 590; Lehman v. City of Toledo (Ohio), 192 N.E. 537; Whalen v. Special Justice, and Whalen v. City of Malden, 3 N.E. (2d) 1005 (Mass.); Coughlin et al. v. City of Milwaukee, 279 N.W. 62. (2) People ex rel. Mulvey et al. v. City of Chicago et al., 12 N.E. (2d) 13; Taylor v. City of Philadelphia, 190 Atl. 663; DeBoest v. Gambell, City Auditor, 58 Pac. 72 (Ore.); Chandler v. City of Elgin, 278 Pac. 581; Bannister v. City of New York, 82 N.Y. Supp. 244; Downs v. City of New York, 78 N.Y. Supp. 442; Kirk v. City of New York, 130 N.Y. Supp. 1061; Collins v. City of New York, 136 N.Y. Supp. 648; McCarthy v. McGoldrick, Comptroller, 194 N.E. 406, 266 N.Y. 199; Snell v. Byington et al., 37 Pac. (2d) 734 (Calif.); State ex rel. Heffernan v. City of Hoquiam, 56 Pac. (2d) 1012 (Wash.); Schuh v. City of Waukesha, 265 N.W. 699 (Wisc.); Adams v. Mayor, etc., of City of Plainfield, 161 Atl. 647 (N.J.); People ex rel. Henryson et al. v. City of Elgin, 5 N. E. (2d) 856 (Ill.); Nelson v. City of Eveleth, 267 N.W. 261 (Minn.); Bell v. Town of Sullivan, 63 N.E. 209 (Ind.); Downs v. City of New York, 78 N.Y. Supp. 442; Ryan v. City of New York, 177 N.Y. 277; Grady v. City of New York, 74 N.E. 448; Peterson v. City of New York, 213 N.Y. Supp. 322; Burns v. City of New York, 134 N.Y. 759; McCarthy v. Mayor, etc., of New York, 96 N.Y. 1; Lazinsk v. State, 148 N.Y. Supp. 808; Clark v. City of New York, 142 N.Y. 101; Hobbs v. City of Yonkers, 102 N.Y. 13; Drew v. Mayor, etc., City of New York, 8 Hun. 443; Ryan v. City of New York, 177 N.Y. 271; Riordan v. City of Chicago, 124 Ill. App. 183; Wagoner v. Philadelphia, 215 Pa. 379; Love v. Mayor and Aldermen, Jersey City, 40 N.Y.L. 456; Coyne v. Rennie, 97 Calif. 590, 32 Pac. 578; McInery v. City of Galveston, 58 Tex. 334; Rau v. City of Little Rock, 34 Ark. 303; Bodell v. City of Battle Creek, 270 Mich. 445, 259 N.W. 658; O'Hara v. Town of Park River, 1 N. Dak. 279, 47 N.W. 380. (2) The doctrines of both waiver and estoppel were applicable to plaintiff and precluded his right of recovery herein. Galbreath v. The City of Moberly, 80 Mo. 484; Leach v. Railroad Company, 86 Mo. 27; Wood v. Kansas City, 162 Mo. 303, 62 S.W. 433; McNulty v. Kansas City, 201 Mo. App. 562, 198 S.W. 185; Henderson v. Koenig and City of St. Louis, 192 Mo. 690, 91 S.W. 88; State ex rel. Whalen v. Player, 280 Mo. 496, 218 S.W. 859; State ex rel. Kinsey v. Messerly et al., 198 Mo. 351, 95 S.W. 913; State ex rel. Buchanan County v. Imel, 242 Mo. 293, 146 S.W. 783. (3) Plaintiff was not a public officer. Administrative Code of Kansas City, Section 46, Article II; State ex rel. v. Johnson, 123 Mo. 43; State ex rel. v. Gordon, 238 Mo. 168; State ex rel. Pickett v. Truman, 233 Mo. 1018, 264 S.W. (2d) 105; Little River Drainage District v. Lassiter, 325 Mo. 493, 28 S.W. (2d) 716. (4) As to constitutional and charter provisions concerning expenditures of revenues. Lamar Water, etc., Co. v. City of Lamar, 128 Mo. 188; Harris v. Mortgage Company, 244 Mo. 664; State ex rel. Pyle v. University City, 8 S.W. (2d) 73; State ex rel. v. Neosho, 203 Mo. 40; State ex rel. v. Gordon, 251 Mo. 303. (5) Discussion of appellant's cases. Glavey v. U.S., 182 U.S. 595; Miller v. U.S., 103 Fed. 413; Orthwein v. City of St. Louis, 265 Mo. 556.

SPERRY, C.

Plaintiff, Ed Galvin, Jr., a former employee of defendant, Kansas City, Missouri, a municipal corporation, sued the latter for back salary alleged to be due and unlawfully withheld. The petition was filed January 14, 1936, and answer was timely filed. Plaintiff filed motion for judgment on the pleadings. Thereafter, defendant by leave of court, withdrew its answer, amended same by interlineation and refiled it. The abstract filed herein shows the following record judgment:

"Now on this day comes defendant and by leave of court withdraws its answer herein and is given leave to amend the same by interlineation, and after said amendment by interlineation having been made, defendant refiles its answer herein. Thereafter plaintiff refiles his motion for judgment on the pleadings. Said motion for judgment on the pleadings filed by plaintiff was duly taken up by the court and the court being duly advised thereupon was by the court overruled, whereupon the plaintiff refused to plead further. Whereupon, it is ordered, adjudged and decreed by the court that plaintiff's petition be and the same is hereby dismissed and that defendant have and recover of and from plaintiff all costs herein and have execution therefor."

According to the transcript furnished by the clerk of the court the following is omitted from the above purported record, to-wit:

"Whereupon Plaintiff elects to stand on his motion for judgment on the pleadings and refused to plead further."

Where there is a conflict as between the abstract of the record and the transcript, as here, the latter will control. [McDonnell v. G.B. Peck Dry Goods Company, 228 S.W. 759, 760.]

From the above statement and record it appears that the sole question for our determination is whether or not the trial court committed error in dismissing plaintiff's petition. Since no evidence was heard nor any agreed statement of facts submitted that is the only question that can be before us. The trial court could not, and did not, rule on the facts, for none were before it.

A motion for judgment on the pleadings is, in some respects, like a demurrer; but, in other respects, it differs essentially from a demurrer. The Supreme Court, in Sternberg...