Peterson v. City of Parsons

• Decision Date: 09 June 1934
• Docket Number: 31512.
• Citation: 33 P.2d 715,139 Kan. 701
• Parties: PETERSON v. CITY OF PARSONS.
• Court: Kansas Supreme Court

33 P.2d 715

139 Kan. 701

PETERSON v. CITY OF PARSONS.

No. 31512.

Supreme Court of Kansas

June 9, 1934

Syllabus by the Court.

Any attempt to fix or change salaries of appointive city officers in city of first class by contract or in any other way than by ordinance held void as against public policy (Rev. St 1923, 13--2101, 13--2103).

Under ordinance of city of first class fixing salaries of appointive officers in accordance with statutory requirements, and in force at time of appointment of city engineer, salary fixed for city engineer cannot be increased or decreased except by ordinance and before appointment (Rev St. 1923, 13--2101, 13--2103).

Where salary of city engineer was fixed by ordinance pursuant to statute, agreement by city engineer consenting to reduction of salary held void as being against public policy (Rev. St 1923, 13--2101, 13--2103).

That city engineer consented to reduction in salary as fixed by ordinance of city of first class at time of his appointment and accepted reduced salary thereafter without protest, held not waiver of right to recover legal salary as fixed by ordinance, and did not amount to accord and satisfaction, because contract was void (Rev. St. 1923, 13--2101, 13--2103).

Where city engineer consented to reduction in salary as fixed by ordinance of city of first class at time of his appointment, and accepted reduced salary thereafter without protest, city engineer held not estopped to subsequently claim full amount of salary as fixed by ordinance (Rev. St. 1923, 13--2101, 13--2103).

1. Where the statutes require that the board of commissioners of a city of the first class must fix the salary of a city engineer and other appointive city officers by ordinance, and that such salaries shall not be increased or diminished during the term for which they are appointed, any attempt to fix or change such salaries by contract or in any other way than by ordinance is absolutely void and against public policy.

2. Where a city of the first class has an ordinance fixing the salaries of city appointive officers in accord with the requirement of state statutes and in force at the time of the appointment of a city engineer, no change either increase or decrease of such fixed salary can be made by the board of commissioners of such city in any other way, manner, or form than by ordinance, and that before the appointment of the city officer affected thereby.

3. Any agreement by an appointive city officer of a city of the first class, where the salary for such office is fixed by ordinance pursuant to statute requiring it to be so fixed before his appointment, wherein he consents to a reduction of salary, is void and unenforceable as against public policy.

4. The consenting to a change in salary fixed by ordinance by an appointive city officer of a city of the first class at the time of his appointment and the accepting of a reduced amount of salary thereafter without protest or complaint does not constitute a waiver of his right to the legal salary fixed by ordinance, nor amount to accord and satisfaction, because such contract is void.

5. The evidence in this case fully considered and held that it entirely lacks the essential elements to constitute estoppel of the plaintiff in his claim against the city for the full amount of the salary fixed by ordinance for city engineer.

Appeal from District Court, Labette County; L. E. Goodrich, Judge.

Action by Cecil J. Peterson against the City of Parsons. From the judgment rendered, the plaintiff appeals.

Reversed, and cause remanded, with directions.

Dwight A. Olds and Carl V. Rice, both of Parsons, for appellant.

Chas. H. Cory, of Parsons, for appellee.

HUTCHISON Justice.

This is an action to recover from the city of Parsons, a city of the first class under the commission form of government, the balance of the salary of city engineer at $175 per month, the rate fixed by ordinance, for the full time of service as such engineer, to wit, twelve and one-half months, less the amount paid plaintiff during that time, being a balance of $1,440.50.

The defendant answered with special pleas of waiver, estoppel, accord and satisfaction, and a modified contract fully executed. There was no substantial conflict in the evidence, and, after being fully instructed, the jury returned a verdict for the plaintiff for $100, from which the plaintiff appeals, urging especially errors in the instructions given.

The evidence shows that the plaintiff was appointed by the commission of the defendant city as city engineer to fill a vacancy at a salary of $150 per month, effective February 1, 1932. The motion making such appointment and the confirmation thereof is shown in the minutes of the commission. The plaintiff served for three months under such arrangement, drawing $150 at the end of each of the three months, and thereafter the evidence shows he only charged for such days as he did manual labor on the street work and then at the rate of $6 per day, pursuant to a modified agreement. Plaintiff filed his statements each month for such service at this rate until February 16, 1933, receiving altogether, including the monthly salary for the first three months, $747, which, deducted from the full salary claimed at $175 per month for the twelve and one-half months, leaves a balance of $1,440.50.

There was evidence introduced showing that plaintiff agreed with the city commissioners at the time of his appointment that he would accept $150 salary per month, and, when he made a demand in writing shortly before bringing this action, he said: "While I am legally entitled to the amount claimed I will accept allowance of said claim in the amount of $1,053.00, thereby crediting the City with the sum of $25.00, per month as per agreement made at the time of acceptance of appointment. This offer to be withdrawn if said claim is not allowed."

There was evidence of services rendered the city by him aside from the manual labor performed by him at $6 per day, for which special services no compensation was ever paid. It is for this special service the appellee suggests that the jury rendered its verdict of $100, although no instruction for such was given or requested. Neither is there anything in the pleadings upon which such verdict could be based.

The trial court in its instructions fully stated the issues in detail and instructed the jury to find for the plaintiff at the rate of $175 per month, or a balance of $1,440.50, if the plaintiff by a preponderance of the evidence established his contention as set out in his petition and reiterated in the instructions, and then instructed the jury as to the contention of the city that the plaintiff had waived any right he might previously have had by agreeing to take $150 per month at the time he was appointed and later after three months having agreed to take, and regularly did take, without protest or complaint, $6 per day for the time he actually labored in his line of work on the streets during the balance of the year, that "then and in that event you are instructed that plaintiff by his acts waived his rights to a salary of $175.00 per month, as provided by said ordinance, and is estopped to claim compensation thereunder, and your verdict should be for the defendant." These instructions were followed by the following instruction: "You are instructed that the plaintiff on the witness stand and his counsel in his opening statement have stated that they are making no claim for more than $150.00 per month. Therefore, if you shall find from the preponderance of the evidence in the case that the plaintiff is entitled to recover from the defendant, as elsewhere explained in these instructions, in computing the amount of his recovery, you will use as a basis of such recovery the amount of $150.00 per month, rather than $175.00 per month, for such time as you shall find from the evidence he is entitled to recover."

The following two sections of the statutes of Kansas are of particular importance with reference to the appointive officers and their salaries in cities of the first class under the commission form of government:

"R. S. 13--2101. The board of commissioners may appoint, by a majority vote of all the members thereof, the following officers, to wit: *** a city engineer, *** but no such officer shall be appointed until his term and salary shall have been fixed by ordinance."

"R. S. 13--2103. The board of commissioners shall have the power to remove the city attorney, city clerk, city treasurer or city auditor for incompetency, neglect of duty, or malfeasance in office, upon charges preferred, after due notice in writing and opportunity to be heard in their defense. *** But said board may in their discretion, by a majority vote of all the members thereof, remove with or without cause the incumbent of any other appointive city office or employment whatever, and may by ordinance prescribe, limit or change the compensation of such officers and employees, except that the salaries of all appointive officers shall not be increased or diminished during the term for which they are appointed."

The following three sections of two ordinances passed by the city of Parsons more than a year prior to the appointment of plaintiff as city engineer of said city for the unexpired term were in force at that time. Section 4 of Ordinance No 3130 is as follows: "The Board of Commissioners shall have power to remove the city attorney, city clerk, city treasurer or city auditor for incompetence, neglect of duty or malfeasance in office, upon charges preferred, after due notice in writing and opportunity to be heard in their defense. *** But said board may at their discretion, by a majority vote of all the members thereof, remove with...