Henderson v. Koenig

• Decision Date: 23 January 1906
• Parties: HENDERSON, Appellant, v. C. WILLIAM KOENIG and CITY OF ST. LOUIS
• Court: Missouri Supreme Court

91 S.W. 88

191 Mo. 690

HENDERSON, Appellant, v. C. WILLIAM KOENIG and CITY OF ST. LOUIS

Supreme Court of Missouri

January 23, 1906

Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.

Affirmed.

W. M Williams, Morton Jourdan and Adiel Sherwood for appellant.

(1) (a) A void law is no law -- ex nihilo, nihil fit. Ex parte Nielson, 131 U.S. 182; Strong v. Daniel, 5 Ind. 348; Sumner v. Beeler, 50 Ind. 341; Astrom v Hammond, 3 McLean (U.S.) 107; Woolsey v. Bank, 6 McLean (U.S.) 142; Detroit v. Martin, 34 Mich 170; Kelly v. Bemis, 4 Gray 83; Clark v. Miller, 54 N.Y. 528; Meagher v. Storey Co., 5 Nev. 244; Ex parte Rosenblatt, 19 Nev. 439; Ex parte Siebold, 100 U.S. 371; Ex parte Smith, 135 Mo. 223; Cooley Const. Lim. (6 Ed.), 222; Couch v. Kansas City, 127 Mo. 438; Douglas v. Kansas City, 147 Mo. 435. (b) There is no estoppel against any person for or on account of anything had or done in reliance upon a void law. Reinhard v. Min. Co., 107 Mo. 616; Cooley Const. Lim. (6 Ed.), 222; Wood v. Kansas City, 162 Mo. 303; Nichols v. Bank, 55 Mo.App. 81. No one can be estopped by an act which is illegal and void, and an estoppel cannot operate in favor of a party where the law prohibits the doing of an act which is alleged to constitute an estoppel, and where a statement or promise made by an agent of defendant is void in law, plaintiff must be presumed to have known that he had no right to rely upon the same; he cannot invoke the doctrine of estoppel to validate a promise which the statute declares void. Nichols v. Bank, 55 Mo.App. 81; Wood v. Kansas City, 162 Mo. 303. One who accepts employment under a municipality is not estopped to deny the validity of an ordinance purporting to affect his salary. Wood v. Kansas City, 162 Mo. 303. (c) Even if we admit that the evidence in this case with respect to approval by the court of transfers of clerks from one position to another made by the supposed probate clerk, and with respect to the approval by the court of appointments already made by the supposed probate clerk of clerks and assistants, still such acts do not help the city of St. Louis, for they were void, and a void act is wholly incapable of ratification. MacFarland v. Heim, 127 Mo. 334; Chitty on Contracts (10 Am. Ed.), 731; Craig v. State, 4 Pet. 426; Sprague v. Rooney, 104 Mo. 358; Ullman v. St. Louis Fair Assn., 167 Mo. 284; St. Louis Fair Assn. v. Carmody, 151 Mo. 566; Keim v. Vette, 67 S.W. 226; Williams v. Wall, 60 Mo. 318; Gwinn v. Simes, 61 Mo. 338; Reeves v. Butcher, 31 N. J. L. 224; Gray v. Hook, 4 Comst. 449; Woodworth v. Bennett, 43 N.Y. 273; Bick v. Seal, 45 Mo.App. 480; Thorne v. Ins. Co., 80 Pa. St. 15; Holt v. Greene, 73 Pa. St. 198; Bishop, Stat. Crimes, sec. 1030; Donahoe v. Kelley, 181 Pa. St. 201; 1 Wharton, Conts., sec. 365; Bishop, Conts., secs. 488, 547; Bishop, Contracts (1887), secs. 471, 488; Harrison v. McCluney, 32 Mo.App. 481; MacFarland v. Heim, 127 Mo. 327; Handy v. St. Paul Globe Co., 41 Minn. 188; Buchanan v. Hazard, 95 Pa. St. 240; Smith v. Newburgh, 77 N.Y. 130; Board v. Arrighi, 54 Miss. 668; San Diego Water Co. v. San Diego, 59 Cal. 517; Boutelle v. Melindy, 19 N.H. 197; Troewert v. Decker, 31 Wis. 49; Duncan v. McCulloch, 4 S. & R. 483; Clarksville Bridge Case, 6 Pa. L. J. 317; State v. Bank, 45 Mo. 542; State ex rel. v. Hays, 52 Mo. 578; Barton County v. Walser, 47 Mo. 283; People v. Bank, 24 Wend. 431; Bisk v. Seal, 45 Mo.App. 480; Hedges v. Dixon County, 150 U.S. 182; Com'rs of Shawnee County v. Crater, 2 Kan. 115; Fudicker v. East Riverside Imp. Dist., 109 Cal. 29. (d) Inasmuch as the Act of March 20, 1897, which assumed to authorize the election of defendant Koenig as probate clerk was a nullity, there was no clerk de facto, because there was no such office to fill; and ordinance No. 19668 being void, there were no deputies or assistants for defendant Koenig to appoint. Douglas v. Kansas City, 147 Mo. 436; Ex parte Snyder, 64 Mo. 58. (2) (a) No man has the right to pay the creditors of another without his express order or consent and expect reimbursement. Even if the supposed probate clerk, elected under a void law, and his clerks and assistants appointed under a void ordinance, did render services in the office of the probate clerk, still that fact did not authorize the city of St. Louis to use plaintiff's money to pay them for such services without plaintiff's order and consent. Packard v. Lienow, 12 Mass. 11; Merritt v. Am., D. & T. Co., 59 N. Y. Sup'r Ct. 83; Watkins v. Richmond College, 41 Mo. 308; Curtis v. Parks, 55 Cal. 106; Inhab. Mendham v. Losey, 2 N. J. L. 351; Thorp v. Ross, 4 Keyes (N. Y.) 546; Gould v. Village of Phoenix, 3 Thomp. & C. 797; Partage Co. Sup. v. Wampa Co. Sup. 16 Wis. 361; Brown v. Chadwick, 79 Mo. 589; Napton v. Leaton, 71 Mo. 369; Claflin v. McDonough, 33 Mo. 412; Meier v. Meier, 15 Mo.App. 73 (affirmed 88 Mo. 566); Daughady v. Crowell, 11 N.J.Eq. 201; Inhab. South Scituate v. Hanover, 9 Gray (Mass.) 420; Winsor v. Savage, 9 Met. (Mass.) 349; Carter v. Phillips, 49 Mo.App. 322. (b) The city of St. Louis is in the position of having taken plaintiff's money without his order or consent and without authority of law, for the Act of March 20, 1897, being a void law, the old law was in force all of the time; in fact, its force and power were never suspended, and this being true, the act of the city in receiving plaintiff's money from defendant Koenig and in using the same to pay the supposed probate clerk and his assistants was an act prohibited by law, for under the old law, which was never suspended, plaintiff was entitled to appoint his own clerk and assistants and fix their compensation and make payments to them from time to time in his own name and in pursuance of his own contracts made with them. The city of St. Louis, therefore, violated the law every time it received any money from defendant Koenig, and every time it paid out any money to defendant Koenig and his deputies and assistants. The money belonged to plaintiff, and he was entitled to receive and disburse it. Whenever an act is expressly or impliedly prohibited by statute, it is illegal and void, and any party affected thereby may take advantage thereof. Welsh v. Brewing Co., 47 Mo.App. 608; Ehrhardt v. Robertson, 78 Mo.App. 411; Gwinn v. Simes, 61 Mo. 338; Woolfolk v. Duncan, 80 Mo.App. 427; Petrel Guano Co. v. Jarnette, 25 F. 675; Bartlett v. Vinor, Carth. 251; Beans v. Robertson, 64 Miss. 195; Atwood v. Fisk, 101 Mass. 364; King v. Winants (71 N.C. 469), 73 N.C. 565. (3) (a) The city of St. Louis cannot recover upon its counterclaim or set-off -- that portion of the answer is demurrable. In every declaration for money paid to the use of another, it must be alleged that it was paid at his request; in short, an express promise of repayment must be alleged unless the party paying the money was under a legal obligation to pay it for the other party and was forced to pay it, in which case the law would raise an implied promise of repayment, the facts showing which must, of course, be alleged; and in any event a consideration for the promise to repay must be stated, and facts showing that the party promising did so with full knowledge of all material facts. And it must be alleged that payment was made not only for the defendant's benefit, but by his authority, for if the money was paid against the protest of the party for whose use it is claimed to have been paid, it cannot be recovered -- this is true whether payment was made under mistake of fact or mistake of law where both parties had the same means of information. Where a party has a legal right, it is not necessary that he shall bring an action or suit or take any active step to prevent interference therewith. It is enough for him to show that he has in a reasonable way informed the other party that he does not submit thereto and legal proceedings to protect his rights destroy any claim of acquiescence, for acquiescence means active assent. Wolfe v. Marshall, 52 Mo. 167; Buchanan v. Sahlein, 9 Mo.App. 552; Alcinbrook v. Hall, 2 Wilson 309; Tappin v. Broster, 1 Car. & P. 112; Stokes v. Lewis, 1 T. R. 20; Butcher v. Andrews, Carth. 446; Sleigh v. Sleigh, 5 Exch. 514 (5 Wel. H. & G.); Hecht v. Bachelor, 147 Mass. 335; Carter v. Boehm, 3 Burr. 1910; Scott v. Jackson, 89 Cal. 262; Kent v. Quicksilver Min. Co., 78 N.Y. 159; Rabe v. Dunlap, 57 N.J.Eq. 48; Glover v. Coleman, L. R. 10 C. P. 119; Bennison v. Cartwright, 5 B. & S. 1 (117 E. C. L. 1); Lux v. Haggin, 69 Cal. 255; Rochdale Canal Co. v. King, 2 Simons (U.S.) 78; DeBussche v. Alt, 8 Chan. Div. (47 L. J. Ch. 381; 38 L. T. 370). (b) Under the authorities, no ratification of the disbursement of plaintiff's money by the city of St. Louis is shown. Fenn v. Harrison, 3 T. R. 757; Sanderson v. Griffiths, 5 B. & C. 913; Vere v. Ashby, 10 A. & C. 298; Collins v. Swan, 7 Robt. (N. Y.) 633; Fellows v. Comrs., 36 Barb. (N. Y.) 655; Wilson v. Tumman, 6 Man. & G. 236; Hamlin v. Sears, 82 N.Y. 331; Workman v. Wright, 33 Ohio St. 405; Beveridge v. Rawson, 51 Ill. 504; Brook v. Hook, 24 L. T. 234; Roby v. Cossett, 78 Ill. 638; Ludlow v. Hardy, 38 Mich. 690; Thorndike v. Godfrey, 3 Green (Me.) 429; Owings v. Hull, 9 Pet. 629; Copeland v. Ins. Co., 6 Pick. (Mass.) 198; Hays v. Stone, 7 Hill (N. Y.) 128; Walker v. Henley, 36 W.Va. 100; Chamberlin v. Whitford, 102 Mass. 448; Dearborn v. Bowman, 3 Metc. (Mass.) 155; McGildery v. Capin, 7 Gray 525; Mills v. Wyman, 3 Pick. 207; Bartholomew v. Jackson, 20 Johns. (N. Y.) 28; Allen v. Bryson, 67 Iowa 591; Ossier v. Hobbs, 33 Ark. 215; Ellicott v. Peterson, 4 Md. 476; Queen City F. & C. v. Crawford, 128 Mo. 364; Combs v. Scott, 12 Allen (Mass.) 496.

Chas. W. Bates and Wm. F. Woerner for respondent City of St. Louis.

(1) The appellant's acts amount to a waiver of...