Gershon v. Kansas City, Missouri
| Citation | 215 S.W.2d 771 |
| Decision Date | 06 December 1948 |
| Docket Number | No. 21100.,21100. |
| Parties | TOM GERSHON, ASSIGNEE AND TRUSTEE, RESPONDENT, v. KANSAS CITY, MISSOURI, APPELLANT. |
| Court | Court of Appeal of Missouri (US) |
Appeal from the Circuit Court of Jackson County. — Hon. Emory Wright, Judge.
AFFIRMED.
David M. Proctor, Forest W. Hanna, and John J. Cosgrove for appellant.
(1) The judgment of the Circuit Court was against the law and the evidence: Johnson was a de facto officer, and not de jure. Kansas City Charter, Article V, Sections 113, 114, 115, 118, 119, 122; State ex rel. v. Drain, 335 Mo. 741, 73 S.W. 2d 804; Eaker v. School District, 62 S.W. 2d 778, l.c. 783. (2) The salary pertaining to an office is an incident of the office itself and not incident to its occupation, the performance of its duties or to the individual discharging them. State ex rel. Nicolai v. Nolte, 180 S.W. 2d 740, 352 Mo. 1076; Stratton v. Warrensburg, 167 S.W. 2d 392, 237 Mo. App. l.c. 288; Luth v. Kansas City, 203 Mo. App. l.c. 113, 318 S.W. 902; Cunio v. Franklin County, 315 Mo. 405, 285 S.W. 1007. (3) A de facto officer who has performed the functions of the office cannot recover the salary of the office or any other emolument for services rendered. Cunio v. Franklin County, 315 Mo. 405, 285 S.W. 1007; Stratton v. Warrensburg, 167 S.W. 2d 382, 237 Mo. App. l.c. 288; State ex rel. Nicolai v. Nolte, 180 S.W. 2d 740, 352 Mo. 1076; State ex rel. Galliger v. K.C., 319 Mo. 705, 7 S.W. 2d 357.
Marcy K. Brown, Jr. for respondent.
(1) Johnson was a de jure officer, not a de facto officer. Kansas City Charter, Article V, Sections 114, 117, 120, 122; Service Register Record (Tr. 30). (2) Even if Johnson was a de facto officer, he was in possession of the office without objection, he discharged all its duties, was accepted by the City as the incumbent of the position, and there was no other claimant for the office. He is not responsible for irregularities of the disbursing officers in the ministerial duty of paying his salary. State ex rel. Kansas City v. Coon et al., 296 S.W. 90, l.c. 103-4; State ex rel. Gallagher v. Kansas City, 7 S.W. 2d 357, l.c. 362 (4); Miller v. Sherman, 139 S.W. 2d 1114, l.c. 1115.
This is a suit brought by respondent as assignee of O. Edwin Johnson, Jr., to collect salary from the appellant claimed as unpaid for services rendered. There was a recovery of $360, plus interest of $171, a total of $531. The city has appealed.
The claimant's evident's tended to prove that during the year 1934 and up to February, 1940, he was a resident of Kansas City, Missouri; that during that time he held the official position in said city, and performed all the duties thereof, as Clerk in the Personnel Department of that city; that his duties consisted of assisting in and conducting examinations for various city positions, auditing payrolls, and general office work; that the salary of $160 a month was payable every two weeks; that "the annual budget passed by the City Council in the civil list affecting the Personnel Department carried an appropriation for claimant's salary in each fiscal year from 1934 to 1937, inclusive"; that during the period from May 1, 1934 to April 30, 1938, he did not receive all of his said salary, but that the amount of $40 was deducted from each of his semi-monthly checks received at different times during that period, or a total of $880, so unpaid; that during all the period of his services as Clerk of the Personnel Department the salary therefor, under an ordinance of the city, was $1920 a year, on which he, in good faith, relied; that there was no other claimant to his position; that during seven months in 1937 in which deductions were so made the budget ordinances of the city provided for an amount sufficient to pay the claimant's salary in full. In his petition the plaintiff alleged that the deductions were illegally made by the City Manager upon his fraudulent representation that the city revenues were insufficient to pay the salaries provided by ordinance, and that the falsity of such representations was not discovered until January 20, 1940.
Defendant offered no evidence, but admitted that the record of the Personnel Department shows that the claimant received his appointment on May 1, 1934, as a Clerk in that department at a salary of $1920 a year; that he was not carried on the regular payroll, but on the "bills payroll", up to May 1, 1939, when he was transferred to the regular payroll in the same position at the same salary; that the later appointment was temporary, and claimant resigned June 5, 1939. Although respondent is not seeking to recover for services subsequent to June 5, 1939, it was stated into the record without objection, presumably for whatever it may bear upon the claimant's proper classification under the city charter during the period of the services sued for, that after the resignation, claimant was appointed as Acting Director of the Personnel Department at a salary of $5400 a year, which position he resigned on February 16, 1940.
Without objection the city was further permitted to state into the record that the Department carried a required "Service Register", containing the names of the employees in the classified service who had successfully passed the examinations and who were therefore carried on the regular payroll after appointment, and that the claimant's name did not appear on that register. Counsel for appellant futher stated into the record, at the request of the court, and without objection, that the "bills payroll" was a "device" in use at the time in question, upon which the names were carried of employees who were not on the regular payroll or service register, and who had not taken examinations, but were appointed to a job at a regular salary; that the list was not signed by the head of the Department, but salary vouchers were issued to such persons twice a month; that some employees were in a class requiring examinations, and some were not; that some were appointed to jobs that probably did not exist by ordinance, some were irregularly appointed "and Mr. Johnson's case may be in that category". The city did not deny that claimant had performed the services claimed, and stated "In fact we think he did perform the services", and that "If he is entitled to recover he is entitled to recover $360, * * * or nothing".
It was stipulated that, of the items claimed, only the amount of $360 came within the statutes of limitations; that the Administrative Code provided for the position of Clerk of the Personnel Department; that the petition was filed February 24, 1940.
Appellant makes the points here that (1) the claimant was a de facto officer not de jure; (2) that the salary is an incident of the office, not of its occupation, or of the performance of the duties or of the individual discharging the duties; (3) that a de facto officer cannot recover the salary or other emoluments for services rendered in such office. In support of the contention that Johnson was not a de jure officer, the city argues that the City Charter then in effect divided its employees into Classified and Unclassified service; that Johnson was within the Classified service and under Division A thereof, requiring the passing of an examination before appointment; that he was never so qualified; that his name did not appear upon the "Service Register" required, but upon an unauthorized "Bills Payroll".
Respondent contends (1) that the claimant was a de jure officer; that his position came properly within Class B, not subject to examinations; that he possessed peculiar and exceptional qualifications of a professional character; that he could not be required to "give himself an examination", and (2) that even if he were a de facto officer, he was in the possession of the office without objection, discharged its duties, was accepted by the city as the incumbent, and that there was no other claimant for the office; that he is not responsible for the irregularities of the disbursing officers in their ministerial duties of paying his salary.
It will be noted that the appellant not only admits, but contends that the claimant Johnson was a de facto officer. It, therefore, admits that all of the conditions existed which gave him that status, among which are that he was in possession of the office, performed its duties and under a fair color of right or title to the office. 46 C.J. p. 1053, Sec. 366. The appellant also admits the acceptance of his services and the payment over the years in question of the authorized salary therefor, less the several deductions of which the claimant complained.
If it be the law that a de facto officer under such conditions is entitled to collect the salary provided for such office, then, of course, he, or his assignee, can recover therefor, and the question of what his rights may be if he were an officer de jure would become academic. We shall, therefore, first consider the rights of the claimant Johnson upon the assumption that he occupied the status of a de facto officer.
The law in this state on that question requires considerable study in order to understand its development and its present meaning and effect. Prior to 1916, the rule in this state was as stated in Cunio v. Franklin County, 315 Mo. 405, 285 S.W. 1007 () that ...
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