Lines v. City of Topeka

• Citation: 577 P.2d 42,223 Kan. 772
• Decision Date: 01 April 1978
• Docket Number: No. 49222,49222
• Parties: David LINES, Appellee and Cross-Appellant, v. CITY OF TOPEKA et al., Appellants and Cross-Appellees.
• Court: United States State Supreme Court of Kansas

Page 42

577 P.2d 42

223 Kan. 772

David LINES, Appellee and Cross-Appellant, v. CITY OF TOPEKA et al., Appellants and Cross-Appellees.

No. 49222.

Supreme Court of Kansas.

April 1, 1978.

Syllabus by the Court

1. A penal statute must sufficiently inform those who are subject to it what conduct will subject them to penalties, and an act which forbids or requires the doing of the act in terms so vague that persons of common intelligence must necessarily guess at its meaning and application violates due process.

2. A city does not violate the constitutional right to travel by requiring its employees to live within the city limits.

3. The equal protection clause of the state and federal Constitutions is not violated because a city residency requirement applies to management employees but not to other employees.

4. Equitable estoppel is the effect of the voluntary conduct of a person whereby he is precluded, both at law and in equity, from asserting rights against another person relying on such conduct. A party asserting equitable estoppel must show that another party, by its acts, representations, admissions, or silence when it had a duty to speak, induced it to believe certain facts existed. It must also show it rightfully relied and acted upon such belief and would now be prejudiced if the other party were permitted to deny the existence of such facts. (Following United American State Bank & Trust Co. v. Wild West Chrysler Plymouth, Inc., 221 Kan. 523, 561 P.2d 792 (1977).)

5. Within the scope of its power and authority to act, a municipal corporation is subject to rules of estoppel in those cases wherein justice and equity require their application and where such application will not interfere with the proper exercise of governmental functions. (Following Benson v. City of DeSoto, 212 Kan. 415, 510 P.2d 1281 (1973).)

6. In a case involving wrongful discharge from employment the proper measure of damages is the amount the salary for the period would have been less the amount plaintiff earned, or which with reasonable diligence he could have earned, had he applied the same ability and devotion in a comparable job.

7. Generally, attorney's fees are not allowable as damages in the absence of a statute.

8. In an appeal wherein the trial court ordered reinstatement of a city employee with payment of back wages, it is held : The trial court erred in (1) declaring Charter Ordinance No. 22 unconstitutional, and (2) failing to consider whether defendant was entitled to a set-off on damages for other income earned by plaintiff. The trial court did not err in (1) granting summary judgment in favor of plaintiff and against the city, and (2) denying an award of attorney's fees as damages.

Richard E. Jones, Asst. City Atty., argued the cause, and Dan E. Turner, City Atty., was with him on the brief for the appellants and cross-appellees.

Kenneth F. Crockett, of Hiatt, Crockett, Hiatt & Carpenter, Chartered, Topeka, argued the cause and was on the brief for the appellee and cross-appellant.

OWSLEY, Justice:

This is an appeal from an order granting summary judgment in favor of plaintiff, David Lines, requiring the City of Topeka to reinstate him in the position of city building inspector with back pay.

Plaintiff was appointed building inspector for the city in November, 1968. Prior to the time of his appointment the city enacted Topeka City Ordinance 8-101, et seq., relating to the creation of a building department and chief building inspector. Section 8-102 provides the chief building inspector shall be appointed by the mayor, with the consent of the other commissioners, to serve for an indefinite term. It refers to Charter Ordinance No. 14 for its removal provisions. Ordinance No. 14 required a vote of four commissioners for removal without cause. The other terms of that ordinance are irrelevant because Charter Ordinance No. 14 was repealed in 1973 and replaced by Charter Ordinance No. 22. The new ordinance required the city attorney, city clerk, city treasurer, city auditor, city engineer, superintendent of streets, superintendent of water works, fire chief, police chief, city forester, superintendent of public parks, airport manager, traffic engineer, building inspector, director of water pollution control, and the refuse director to be residents of the city in order to qualify and remain in their respective offices. Any of said officers could be removed from his respective office by a three-fifths vote of the commissioners, with or without cause. Neither the charter ordinance nor any other city ordinance defined the term "residence." Ordinance 8-101, et seq., was never amended or repealed.

In June, 1974, plaintiff moved from a private home to an apartment located within the city limits of Topeka. On February 14, 1975, plaintiff married his present wife. At the time of their marriage she owned a home in rural Perry, Kansas. For reasons unnecessary to discuss in order to resolve this appeal, plaintiff began staying at the Perry home on occasion but continued to maintain his Topeka apartment. Whether the Perry home became his "residence" is disputed and was never resolved by the trial court.

On March 24, 1976, Commissioner Kenneth Elder questioned whether plaintiff was any longer a resident of the City of Topeka. Two responses by the city attorney's office did not clear up the matter and on April 6, 1976, Mayor Bill McCormick proposed the city commission direct the city attorney's office to draft an ordinance defining "residence" so that it might be enacted into law. More importantly, he recommended plaintiff "be continued in employment temporarily until the ordinance amendment becomes law, and, at that time he be notified to comply with the defined residence requirements or be terminated from his employment." The proposal was passed and approved by a unanimous vote of the commissioners. The commission also granted plaintiff a reasonable time to comply with the ordinance following its enactment. For some unknown reason the proposed ordinance was prepared but was never enacted.

In a surprise move on April 29, 1976, Mayor McCormick recommended plaintiff be terminated for poor job performance. At the regular commission meeting on May 4, 1976, the commission refused to terminate plaintiff for the reason stated by the mayor. McCormick then proposed he be terminated because he was not a Topeka resident as required by Charter Ordinance No. 22. Three commissioners voted in favor of the proposal and plaintiff was terminated.

Plaintiff filed suit in district court challenging the constitutionality of Charter Ordinance No. 22, contesting the legality of the termination proceedings, and seeking reinstatement to the position of chief building inspector with payment of back wages. After completing discovery both parties moved the trial court to grant summary judgment in their favor. On May 19, 1977, the trial court declared that Charter Ordinance No. 22 was unconstitutional for vagueness and uncertainty, and ordered that plaintiff be reinstated as chief building inspector with payment of back wages.

The city appeals, arguing the trial court erred in (1) declaring Charter Ordinance No. 22 unconstitutional, (2) granting plaintiff's motion for summary judgment, (3) failing to grant its motion for summary judgment, and (4) failing to consider whether defendant is entitled to a set-off on damages for other income earned by plaintiff. Plaintiff cross-appeals, arguing the trial court erred in (1) failing to declare Charter Ordinance No. 22 unconstitutional because it places an unreasonable restriction on travel and violates the equal protection clause, and (2) failing to award plaintiff attorney's fees.

Before considering the issues raised by the parties it is necessary to determine which ordinance governs the removal of the chief building inspector. Plaintiff contends 8-102 controls; the city contends Charter Ordinance No. 22 controls. We agree with the city's position.

Although Charter Ordinance No. 14 and 8-102 governed the removal of the building inspector when plaintiff was appointed to that position in November, 1968, there is no rule of law which prohibits the city from changing the method by which it removes its department heads. No person has a vested right in any rule of law entitling him to insist it shall remain unchanged for his benefit. (State ex rel. Schneider v. Liggett, 223 Kan. 610, 576 P.2d 221, decided March 10, 1978.)

Because Charter Ordinance No. 22 was enacted after 8-102, its removal provisions apply. It is well established that the latest expression of the governing body upon a subject applies, and it operates to repeal the earlier inconsistent provisions even though both may remain on the book. (Mannel v. Mannel, 186 Kan. 150, 348 P.2d 626 (1960); Lawton v. Hand, 183 Kan. 694, 331 P.2d 886 (1958).)

The first issue on appeal concerns the constitutionality of Charter Ordinance No. 22. The answers to the following questions determine this issue: Is the ordinance impermissibly vague? Does the ordinance impermissibly restrict the right of travel protected under the constitution? Does the ordinance violate equal protection because it applies to some city employees but not others?

It must be remembered that it is the duty of this court to uphold legislation rather than defeat it. If there is any reasonable way to construe the law as constitutionally valid, or if any set of facts can justify the legislation, that should be done. (State v. Kirby, 222 Kan. 1, 563 P.2d 408 (1977); Brown v. Wichita State University, 219 Kan. 2, 547 P.2d 1015 (1976); Henry v. Bauder, 213 Kan. 751, 518 P.2d 362 (1974); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491, reh. denied 398 U.S. 914, 90 S.Ct. 1684, 26 L.Ed.2d 80 (1970).)

The basic test as to what constitutes a vague and indefinite statute was stated in Connally v. General Const. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926). There ...