Gregory v. Kansas City

• Decision Date: 02 July 1912
• Citation: 149 S.W. 466,244 Mo. 523
• Parties: ROBERT L. GREGORY et al. v. KANSAS CITY et al., Appellants
• Court: Missouri Supreme Court

149 S.W. 466

244 Mo. 523

ROBERT L. GREGORY et al. v. KANSAS CITY et al., Appellants

Supreme Court of Missouri

July 2, 1912

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Reversed.

John G Park, A. F. Smith, Elijah Robinson and Haff, Meservey, German & Michaels for appellants.

(1) Plaintiffs' petition fails to state facts sufficient to constitute a cause of action, and the evidence shows that plaintiffs are not entitled to any relief. (a) Sec. 1176 of the Revised Ordinances of 1898, on which plaintiffs base their action, is invalid because its provisions limiting the power of the appointing officers to discharge their employees at will are inconsistent with the provisions of Sections 1 and 7 Article 13 of the charter of 1889, which do not limit that power. State ex rel. v. Johnson, 123 Mo. 43; Abrams v. Horton, 18 A.D. 208; Wright v Gamble, 136 Ga. 376. (b) Sec. 1176 provides a method for hiring and discharging employees in the water department of the city; Art. 15 of the charter of 1908 provides a method of hiring and discharging employees in all departments of the city. The charter of 1908 repeals the ordinance of 1898. The question of repeal is always one of legislative intent. 26 Am. & Eng. Ency. Law, 720; Grimes v. Reynolds, 184 Mo. 679; Hamilton v. Rathbone, 175 U.S. 414. A later statute repugnant to a former one, or covering the whole subject-matter covered by a former one, is a repeal thereof. Grimes v. Reynolds, 184 Mo. 679; Hamilton v Rathbone, 175 U.S. 149; Sutherland on Stat. Constr sec. 252; In re Baker, 2 H. & N. 219; Bride v McFarland, 18 App. Cas. 120; District v. Hutton, 143 U.S. 18; Camden v. Varney, 63 N.J.L. 325; Thornton v. State, 5 Ga.App. 397; Bradley v. Muzzy, 54 Wash. 227; Grant v. Railroad, 66 W.Va. 175; People ex rel. v. Loeffler, 175 Ill. 585; Smith v. State, 14 Mo. 147; Grimm v. Jones, 115 Mo.App. 597; State v. Crane, 202 Mo. 54; Hudson v. Wright, 204 Mo. 412; State ex rel. v. Shields, 230 Mo. 91. An ordinance, if in conflict with a charter subsequently adopted, is repealed. Quinette v. St. Louis, 76 Mo. 402. Sec. 1, Art. 18 of the charter of 1908 does not save from repeal the provisions of Sec. 1176, Revised Ordinances 1898. Where a board is abolished, in the absence of any saving clause in the new law, its employees are discharged, and if re-employed, it must be by a new authority. Fox v. McDonald, 101 Ala. 51; State ex rel. v. Board, 7 Neb. 42; 2 McQuillen, Mun. Corp., sec. 494. The provisions of section 1176 were also repealed by subsequent ordinances. Sec. 1071, R. O. 1910; ordinance 10883, approved November 17, 1898. (c) Plaintiffs did not have such a vested interest in the continued existence of the provisions of Sec. 1176 that its repeal would constitute a violation of Sec. 15, Art. 11 of the State Constitution, or Sec. 10, Art. 2 of the Constitution of the United States prohibiting the enactment of a law impairing the obligation of a contract. The purpose of Sec. 1176 was to create a rule of public policy. No individual has a proprietary right in a rule of public policy. Bushnell v. Loomis, 234 Mo. 371; Mondou v. N.Y., etc. Co., 32 S. C. R. 169. The effect of the provisions of Sec. 1176 was to grant an appeal from the order of an appointing officer discharging any of his employees. No individual has such a proprietary right in a law granting appeals that such law cannot be repealed. State v. Slevin, 16 Mo.App. 541; Cooley's Const. Lim., p. 548; Railroad v. Grant, 98 U.S. 398; Gwin v. U.S. 184 U.S. 669; Isenberg v. Selvage, 103 Ky. 260; Rupert v. Martz, 116 Ind. 78. An officer has no vested right to his office. The government may change the duties of that office or abolish it altogether, without violating any of the officer's rights. 23 Am. & Eng. Ency. Law, 328; City v. Drennon, 46 Mich. 478; Butler v. Pennsylvania, 10 How. 402; People v. Brown, 83 Ill. 95; Butcher v. Camden, 29 N.J.Eq. 478; Hoboken v. Gear, 3 Dutch. (N. J.) 261; Council v. Sweeney, 44 Ga. 463; State ex rel. v. Davis, 44 Mo. 129; State ex inf. v. Evans, 166 Mo. 356; State ex rel. v. Ellington, 134 N.C. 131; Newton v. Comm'rs, 100 U.S. 559; Crenshaw v. United States, 134 U.S. 99; Primm v. Carondelet, 23 Mo. 22. The rule as to officers applies with equal force in cases affecting employees. Langdon v. New York, 92 N.Y. 427; Phillips v. New York, 88 N.Y. 245; People v. Adams, 51 Hun 583; People ex rel. v. Judges, 56 Hun 643; McCann v. New York, 166 N.Y. 587; Fox v. McDonald, 101 Ala. 51; People ex rel. v. Sweeney, 43 A.D. 444; People v. City, 149 N.Y. 225; State ex rel. v. Edwards, 40 Mont. 287; Donaghy v. Macey, 176 Mass. 178; Venable v. Board, 40 Ore. 458; Frankfort v. Brawner, 100 Ky. 66; Moores v. State, 54 Neb. 486; Heath v. Salt Lake, 16 Utah 374; Fitzsimmons v. O'Neill, 214 Ill. 494; Sutliffe v. City, 132 A.D. 831; Chicago v. People, 114 Ill.App. 145; Bock v. New York, 64 N.Y.S. 777; People v. Bingham, 196 N.Y. 519; Wilcox v. Rodman, 46 Mo. 332; State ex rel. v. Ford, 41 Mo.App. 122; Magner v. St. Louis, 179 Mo. 495. There is a clear distinction between a case where one has a contract with the government, and a case where one's employment is merely authorized by law. Hall v. Wisconsin, 103 U.S. 5; Head v. University, 19 Wall. 526. Laws granting pensions to employees may be repealed without impairing any legal right of such employees. People ex rel. Devery v. Coler, 173 N.Y. 103; State ex rel. v. Board, 121 Wis. 44; Friel v. McAdoo, 181 N.Y. 558; People v. Peck, 73 A.D. 89; McFarland v. Bieber, 32 App.Div. (D. C.) 513; Pennie v. Reis, 132 U.S. 464. Laws changing the rules of liability in master and servant cases do not impair contractual rights of employer or employee. Pittsburg Co. v. Lightheiser, 163 Ind. 247; Mondou v. N.Y. Co., 32 S. C. R. 169. A contract which would permit the employee to quit at his pleasure and not permit the government to discharge him at its pleasure would be a unilateral contract and uninforcible. 2 Pomeroy, Eq. Jur., sec. 769; Marble Co. v. Ripley, 77 U.S. 359; Pub. Co. v. Tel. Co., 83 Ala. 498; Alworth v. Seymour, 42 Minn. 526; 1 Page on Contracts, sec. 304; Railroad v. Mathews, 64 Ark. 398. A contract with Kansas City would have been illegal in the absence of an appropriation setting aside the amount for which Kansas City would be liable under said contract. Charter of Kansas City of 1889, art. 4, sec. 30; 2 Dillon, Mun. Corp. (5 Ed.), sec. 790; Indianapolis v. Wann, 144 Ind. 175. (2) By accepting benefits accruing to them under and by virtue of the charter of 1908 and proceedings and ordinances based thereon, the plaintiffs have waived their rights (if any they had) to make any claim under an ordinance passed before the adoption of said charter. (a) Positions created under authority of the charter of 1889 died with the adoption of the charter of 1908, except as saved by the provisions of said charter of 1908. In remaining in the service after August 4, 1908, plaintiffs held their positions by virtue of the charter of 1908. Fox v. McDonald, 101 Ala. 51; State ex rel. v. Board, 7 Neb. 42; 2 McQuillen, Mun. Corp., sec. 494. (b) Most of the plaintiffs participated in the civil service examinations for the positions claimed by them, and thereby waived their right to question the applicability of the civil service provisions of the charter to those positions. (c) After the adoption of the charter of 1908, plaintiffs' pay was increased, and in some instances their positions were changed. Having accepted the benefits of changes made by virtue of the new law, they must abide by all of the provisions of that law. State ex rel. v. Hawes, 177 Mo. 360. Any employee who seeks the aid of a court for the violation, or threatened violation, of some right conferred by ordinance, must allege and prove the ordinance on which that right is based. State ex rel. v. Oddle, 42 Mo. 214; Keane v. Klausman, 21 Mo.App. 489; Givens v. Van Studdiford, 86 Mo. 159; Mooney v. Kennett, 19 Mo. 552; Bailey v. Kansas City, 189 Mo. 514; Bragg v. Met., 192 Mo. 350; McHugh v. Transit Co., 190 Mo. 93; 28 Cyc. 393; Stott v. Chicago, 205 Ill. 281. Where a contract has been modified, it must be sued on and proved as modified. Larits v. King, 93 Mo. 519; Sutton v. Raeder, 147 Mo. 309; Harrington v. Brockman, 107 Mo.App. 423; Breicheisen v. Coffey, 15 Mo.App. 84; Taussig v. Mill, 124 Mo.App. 220; Mfg. Co. v. School District, 54 Mo.App. 376; Koons v. Car Co., 203 Mo. 260; Wilson v. Russler, 91 Mo.App. 280; Cannon Co. v. Boswell, 117 Mo.App. 473; Zinc Co. v. Assur. Corp., 125 Mo.App. 41; Reilly v. Mayor, 48 N.Y.S. Ct. 274. (3) Article 15 of the charter of 1908 is not unconstitutional on the ground that it confers legislative powers on the board of civil service when it authorizes that board to adopt rules for carrying out the civil service provisions of the charter. (a) This case presents no issue affected by the rules of the board of civil service. Jaicks v. Merrill, 201 Mo. 91. (b) Civil service laws universally contain provisions authorizing the adoption of rules, and they are always upheld. Sec. 2, Fed. Civil Service Act of January 16, 1883 (1 Fed. Sta. Ann., 9, 809); Butler v. White, 83 F. 578; White v. Berry, 171 U.S. 366; Sec. 9, Civil Service Law of N.Y. (R. S. N.Y. 1901, p. 499); Rogers v. Council, 123 N.Y. 187; People v. Cramm, 61 N.Y.S. 858; Sec. 6, ch. 19, R. S. Mass. 1902; Opinion of Justices, 138 Mass. 601; Sec. 4, ch. 24a, R. S. Ill. 1908; People v. Kipley, 171 Ill. 44; Kipley v. Luthardt, 178 Ill. 535; People v. Chicago, 234 Ill. 416; State ex rel. Buell v. Frear, 146 Wis. 291. (c) Statutes authorizing medical and dental examining boards to adopt rules are universally upheld. 2 Dillon, Mun. Corp. (5 Ed.), sec. 574; Ex parte McManus, 151 Cal. 331; In re Thompson, 36 Wash. 377; Butterfield v. Stranahan, 192 U.S. 470; State...