Orthwein v. City of St. Louis
| Decision Date | 30 June 1915 |
| Citation | 178 S.W. 87,265 Mo. 556 |
| Parties | WILLIAM R. ORTHWEIN, Administrator of DANIEL A. CLAYTON, Appellant, v. CITY OF ST. LOUIS |
| Court | Missouri Supreme Court |
Appeal from the St. Louis City Circuit Court. -- Hon. Moses N. Sale Judge.
Affirmed.
M. B Levy and Barclay, Orthwein & Wallace for appellant.
(1) The fact that plaintiff Clayton and his assignors accepted payment, monthly, of a part of the salary due them for public service as inspectors (as fixed by the city ordinance) and gave monthly receipts therefor, does not bar the right to recover the residue of the lawful salary. People v Police Board, 75 N.Y. 38; Grant v. Rochester, 175 N.Y. 473; Glavey v. United States, 182 U.S. 595; Golding v. New York, 140 N.Y.S. 1020. When the statutes invest a municipal corporation with power to fix compensation for public services, ordinances doing so must be treated as passed by the Legislature itself. Holman v. City, 155 Mo.App. 398. (2) It is not competent for one engaged in public service to make a contract to perform the service for a lesser sum than is fixed by law, such contract being against public policy as tending to impair efficient service; and such result cannot be brought about by indirection, in paying the inspector less than his lawful salary and getting his receipt for the same. State v. Collier, 72 Mo. 13; Bowe v. St. Paul, 70 Minn. 341; Adams v. United States, 20 Ct. Cl. 115; People v. Board, 75 N.Y. 38; Trustees v. Walden, 15 Ala. 655; State v. Steele, 57 Tex. 200; Whiting v. United States, 35 Ct. Cl. 291; Kehn v. Board, 93 N.Y. 291; Settle v. Sterling, 1 Idaho, 259; State v. Purdy, 36 Wis. 213; Insurance Co. v. Brainard, 72 Iowa 130; People v. Thornton, 25 Hun, 456. (3) Even if the so-called "settlement" with plaintiff Clayton and his assignors should be treated on the basis of private dealings (apart from public service) part payment of a liquidated debt will not discharge the residue even if so expressed. (a) Acceptance of a less sum for a greater, where the real demand is liquidated by agreement of the parties "or fixed by law," is not a discharge of the demand, for the obvious reason that the supposed discharge or release, in such circumstances, has no consideration to support it. Winter v. Railroad, 73 Mo.App. 194; Winter v. Railroad, 160 Mo. 159; Goodson v. Nat. Assn., 91 Mo.App. 352; Ireland v. Spickard, 95 Mo.App. 64. (b) The receipts for the money, month by month, were evidence only of payments to plaintiffs on account. They do not even purport to be in full or in discharge of all liability. They are far from conclusive and constitute no barrier to plaintiff's recovery on any theory of "account stated." Ireland v. Spickard, 95 Mo.App. 64; Kehn v. New York, 93 N.Y. 291; Heintz v. Pratt, 54 Ill.App. 616. (c) A new consideration is necessary to support such relinquishment of the debt. Wetmore v. Crouch, 150 Mo. 671; Riley v. Kershaw, 52 Mo. 224. (4) Salary for public service is not treated on the principles of ordinary contract. Bates v. City, 153 Mo. 18; State v. Walbridge, 153 Mo. 194; State v. Gordon, 245 Mo. 12. (5) The acts of the city in accepting pay (from holders of permits for excavations, etc.) for the services rendered by these very plaintiffs, at the rate fixed for payment of street inspectors, and in directing plaintiffs to perform all the duties of inspectors, estop the city from denying that they were inspectors. Public corporations, as other persons, are governed by the principles of estoppel, within the scope of their lawful powers. Simpson v. Stoddard County, 173 Mo. 421; Roe v. Bank, 167 Mo. 406. But this issue is no longer vital, as the referee has found that plaintiff and his assignors were inspectors.
William E. Baird and Truman P. Young for respondent.
(1) Paintiffs were not employed as inspectors in the street department under ordinance 19036. This will be obvious from a consideration of the terms of the ordinance and an examination of the testimony. (2) The fact that the referee found that the plaintiffs were employed under section 1335 of the Revised Ordinances of 1892, while the defense contended that they were employed as day laborers at $ 2 a day, does not help the plaintiffs' case. In either event, they were not entitled to recover anything, as there had been no deficiency in their payment. Furthermore, plaintiffs must recover upon the case stated in their petition or not at all. Bagnell v. Railroad, 180 Mo. 463; Hesselbach v. St. Louis, 179 Mo. 524; Yall v. Gillham, 187 Mo. 408. (3) All municipal appointments to office must be in writing. Ordinance 19036 required inspectors appointed under that ordinance to be appointed by the street commissioner with the approval of the mayor. The appointment, as well as the approval of the mayor, must be in writing and preserved in the city records. People v. Murray, 70 N.Y. 521; Railroad v. Waterbury, 55 Conn. 19; Cooner v. Gilmore, 32 Cal. 75; 23 Am. & Eng. Ency. Law (2 Ed.), p. 34; Throop on Public Officers, secs. 86-87. (4) The plaintiffs having accepted pay at $ 2 a day, and allowed their names to be carried upon the payrolls as day laborers at $ 2 a day, are now estopped from claiming more. Galbraith v. Moberly, 80 Mo. 487; Love v. Jersey City, 40 N. J. L. 459; Stagg v. Ins. Co., 10 Wall. 589; United States v. Garlinger, 169 U.S. 322; Baker v. Nachtrieb, 19 How. 126; United States v. Child, 12 Wall. 232; DeArnaud v. United States, 151 U.S. 483; Rau v. Little Rock, 34 Ark. 303; McInery v. Galveston, 58 Tex. 339; Cobbs v. Yonkers, 102 N.Y. 13; Byrnes v. St. Paul, 78 Minn. 205.
This suit was begun September 20, 1902, since which time Daniel A. Clayton, the original plaintiff, has died, and the cause has been revived and is now proceeding in the name of his administrator.
Mr. Clayton sued for himself and as assignee of twenty-one others of claims which depend substantially upon the same facts. Each is separately stated in the twenty-two counts of the petition, and they amount in all to $ 23,709, for which, with accrued interest, judgment is asked.
Each count is a fair type of all the others, and alleges, in substance, the appointment of the original claimant as inspector in the street department of the defendant city for the salary and hire of $ 75 per month prescribed and fixed by ordinance number 19036 of said city, the number of months he served in that capacity, the faithful discharge of his duties as such inspector during that time, his discharge without any fault of his own, the amount that he had been paid by the city on account of such services and the amount claimed as still due him. The provision of the ordinance upon which the claim is founded, as pleaded, is as follows:
It also states the assignment to Clayton of each of the twenty-one claims upon which he declares as assignee.
The answer denies generally the allegations of the petition and avers as to each count that the original claimant therein was never appointed inspector by the street commissioner, nor was he appointed to any position with the approval of the mayor; that plaintiff and each of his assignors was employed by the superintendent of excavations for and in behalf of defendant as a day laborer, at the rate of two dollars per day for each day he worked, and that each month there was an accounting between him and the defendant, which thereupon paid the amount agreed between them to be due for such services, which the plaintiff accepted and received in full satisfaction therefor and receipted to the defendant in full for all sums due him, whereby his claim and demand was fully discharged. A full statement of each day's service during each month, and the amount paid therefor to each claimant, was filed with the answer.
Issue was joined by replication and the cause was referred by the court of its own motion.
The petition charges for services rendered during the months from April, 1897, to April, 1902, inclusive, and the several counts cover periods of from five to fifty-six months each. The answer states the number of days each claimant was actually employed in each month in looking after the work of excavation. This averages all the way from nine days in the case stated in the thirteenth count, to twenty-nine days in the sixteenth count. Eight of the claimants, including the plaintiff, were employed or appointed before the passage of the ordinance, No. 19036, approved July 29, 1897, on which the suit is founded, and fourteen of them afterwards. None of them were reappointed after the passage of the ordinance, but kept on under the original employment. Plaintiff testified that about July 1, 1897, he went to the mayor, Ziegenhein and asked for a job. The mayor took him to his son, Adam (then his private secretary), and told him to give him an appointment. Adam wrote out a paper which the plaintiff took to the assistant street commissioner, who sent him to the superintendent of excavation, who sent him out to...
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