Luth v. Kansas City

• Decision Date: 16 February 1920
• Citation: 218 S.W. 901,203 Mo.App. 110
• Parties: L. M. LUTH, Respondent, v. KANSAS CITY, Appellant
• Court: Kansas Court of Appeals

218 S.W. 901

203 Mo.App. 110

L. M. LUTH, Respondent, v. KANSAS CITY, Appellant

Court of Appeals of Missouri, Kansas City

February 16, 1920

Appeal from Jackson Circuit Court.--Hon. Wm. O. Thomas, Judge.

AFFIRMED.

Judgment affirmed.

Davis & Woodruff and Richard D. Noel for respondent.

E. M Harber and Francis M. Hayward for appellant.

OPINION

ELLISON, P. J.

This action was brought for salary alleged to be due plaintiff as chief clerk in the water department of the defendant city. The judgment in the trial court was for the plaintiff and the city appealed.

It seems that on the 10th of June, 1910, P. C. Folk was appointed chief clerk in the office of Assessor and Collector of Water rates for Kansas City, Missouri. His appointment was made in the manner prescribed by what is called the new charter of Kansas City adopted in 1908. That charter provided for civil service commissioners with rules governing appointment to office.

Under the provisions of that charter the civil service commissioners by examination of applicants for office, on the 22nd of March, 1911, created an eligible list of persons and this plaintiff stood highest on the list and Folk failed to receive grade sufficient to put him on the list. The civil service commissioners certified the name of plaintiff to the water commissioner as the person eligible to the position of chief clerk to the water commissioner and that officer appointed him as clerk on the 23rd of March, 1911. In a few days (the 11th of April, 1911), he entered on the discharge of his duties, and performed them (except as partially interfered with by Folk) until the 10th of October, 1911, and his salary of $ 150 per month was paid, monthly, to him; it being at that date discontinued by the city on account of an injunction order. During this time Folk did not surrender his claim to the office and continued to perform a small part of the duties connected therewith. This dual performance of duties continued until plaintiffs salary was cut off, when he felt forced to quit and Folk performed all the duties until the 22nd of July, 1912; though plaintiff continuously disputed his right and stood ready to perform the duties.

It thus appears that during this conflict between the two claimants the city, as above stated, was enjoined by the circuit court from paying plaintiff any salary and thereafter did not pay a salary to either plaintiff or Folk until the 22nd of May, 1912, it paid Folk from the time it discontinued payment to both, the sum of $ 1185 in bulk. The injunction suit was appealed to the Supreme Court where the judgment was reversed and the injunction dissolved, that court declaring plaintiff the right claimant to the office and he was then given possession.

Recapitulating it appears that Folk was the incumbent of the office of chief clerk in the water commissioner's office and that under the city charter plaintiff was appointed in his place and Folk refused, in part, to surrender; and plaintiff was finally adjudged to be the rightful claimant. That no payments of salary were made to either for several months when the city paid it to Folk notwithstanding the pendency of the injunction in the Supreme Court. Plaintiff afterwards brought this action for the salary accruing during the period he was deprived of the office, the city having paid it to Folk.

The defense made by the city is that Folk was the de facto officer and that having been paid him the salary, it could not pay the same salary to plaintiff, though the latter had at the time title to the office. As a proposition of law the city is sustained by much authority. [Dolan v. Mayor, 68 N.Y. 274; Nall v. Coulter, 117 Ky. 747, 78 S.W. 1110; Scott v. Crump, 106 Mich. 288, 64 N.W. 1; Shannon v. Portsmouth, 54 N.H. 183; Brown v. Tama County, 122 Iowa 745, 98 N.W. 562.]

There are many of the opposite view. [Cleveland v. Luttner, 92 Ohio St. 493, 111 N.E. 280; State ex rel. v. Carr, 129 Ind. 44, 28 N.E. 88; Hogan v. Hamilton Co., 132 Tenn. 554, 179 S.W. 128; Tanner v. Edwards, 31 Utah 80, 86 P. 765; People v. Oulton, 28 Cal. 44; Andrews v. Portland, 79 Me. 484, 10 A. 458; Memphis v. Woodward, 59 Tenn. 499, 12 Heiskell.]

In this State it is held that a salary is attached to and depends upon the legal title to the office and that the de jure claimant is entitled to the salary even though he has not occupied the office or performed the duties thereof. [State ex rel. v. Walbridge, 153 Mo. 194, 203, 54 S.W. 447; State ex rel. v. Gordon, 245 Mo. 12, 28, 29, 149 S.W. 638.] And following the logical result of the rule stated in those cases it was held in Sheridan v. St. Louis, 183 Mo. 25, 38-40, 81 S.W. 1082, that a de facto officer who has performed the functions of the office cannot recover the salary attached to such office. Throop on Public Offices and Mechem on Public Office and Officers cited in those decisions sustain them.

While those cases are in point by controlling inference, they do not involve the precise question before us, which is this; If the de facto officer has been paid the salary, can the de jure officer compel the municipality to pay, to him. Those courts which deny, outright, that this can be done, put it on the ground that since there is no contractual right with the public to a salary, it is but good policy to protect the public from a second payment; and also the necessity that public official functions shall be performed by some one, whether he be the rightful one, or otherwise.

Other courts qualify that rule by the statement that the payment to the de facto officer must have been made in good faith. The following is quoted approvingly from Mechem on Public Office and Officers, sec. 332, in State ex rel v. Walbridge, 153 Mo. 194, 54 S.W. 447 and State ex rel. v. Babcock, 106 Mo.App. 72, 80 S.W. 45; viz. "If payment of the salary or other compensation be made by the government, in good faith (Italics ours) to the officer de facto, while he is still in possession of the office, the government cannot be compelled to pay it a second time to the officer de jure when he has recovered the office, at least where the officer de facto held by color of title." The same qualification is found in The People v. Schmidt, 281 Ill. 211, 213, 117 N.E. 1037; Coughlin v. McElroy, 74 Conn. 397, 402, 50 A. 1025, and many other cases we need not stop to cite, for the reason we regard the case of Gracey v. St. Louis, 213 Mo. 384, 397, 111 S.W. 1159, as deciding the question to every intent; for, while no use is made in that case of the word "good faith," the simple statement of what was there done by the city makes clear that the Supreme Court thought the act described not done in good faith, as that term is known to the law. The court said: "Here plaintiff was not 'removed,' as that term is understood in the law. What was done was not legally done and therefore had o legal effect. Another was assigned his duties and that other was paid by the city. That was the city's affair, if it chose to take such course with its attending consequences. Plaintiff remained in office, and the point is controlled by the general proposition of law that his right to the salary during his term, until legally removed, was independent of his actual performance of any duties whatever."

Now did the city act in good faith when it paid the salary to Folk the de facto clerk? Undoubtedly it did not. It is enough to condemn the city that knowing the question which of the two claimants was the legal one was then pending in the supreme court, it undertook, on the 11th of May, 1912, to have the appeal dismissed and succeeded in doing so; but that court, on the 21st of May had its attention called to probable injustice, and reinstated the case. Plaintiff notified the city on May 16th that he would file a motion in the supreme court to set aside the dismissal, and this motion was, in fact, filed or May 21st, and the court shortly thereafter decided that plaintiff was the legal claimant. We find that with this action of the city, it, on the next day after plaintiff filed his application in the supreme court, paid Folk, the back salary of $ 1185, in a lump sum. The work for this...