Powell v. Buchanan County
| Citation | 155 S.W.2d 172,348 Mo. 807 |
| Decision Date | 30 October 1941 |
| Docket Number | 37596 |
| Parties | Elmer Powell v. Buchanan County, Appellant |
| Court | United States State Supreme Court of Missouri |
Appeal from Buchanan Circuit Court; Hon. Emmett J. Crouse Judge.
Affirmed.
Joseph A. Sherman and John W. Mitchell for appellant.
(1) Under respondent's own testimony he is not entitled to recover any sum of money from the defendant because of the contradictions and admissions against interest contained therein. Faith v. Home Life Ins. Co., 208 S.W. 124 203 Mo.App. 196; Kazee v. Kansas City Life Ins. Co., 217 S.W. 339; Peoples Finance Co. v. Buckner, 126 S.W.2d 301, 344 Mo. 347; McCoy v. Home Oil & Gas Co., 60 S.W.2d 715; Kirkpatrick v. Met. St Ry., 109 S.W. 682, 211 Mo. 68; Madden v. Red Line Service, Inc., 76 S.W.2d 435, 230 Mo.App. 113; Murry v. Transit Co., 176 Mo. 183, 75 S.W. 611. (2) Failure of respondent to provide bond satisfactory to county court and approved by it of record bars all right of respondent to recover any sum in this case. Sec. 8656, R. S. 1939; Cunio v. Franklin County, 285 S.W. 1007, 315 Mo. 405. (3) Since the county court did not at any time during the years 1935 and 1936 authorize or approve the appointment of respondent as chief deputy county highway engineer, or enter his name as such chief deputy on its records, he is not entitled to recover any sum in this case. State ex rel. Conran v. Duncan, 63 S.W.2d 135, 333 Mo. 673; Secs. 13488, 13494, 13495, R. S. 1939; Cunio v. Franklin County, 285 S.W. 1007, 315 Mo. 405; Ward v. Christian County, 111 S.W.2d 182, 341 Mo. 1115; Smith v. Pettis County, 136 S.W.2d 282, 345 Mo. 839. (4) Under the evidence in the case, considered as a whole, the respondent was not legally appointed chief deputy county highway engineer, and is therefore not entitled to recover any sum of money in this case. Secs. 13494, 13495, R. S. 1939; Cunio v. Franklin County, 285 S.W. 1007, 315 Mo. 405; Schulte v. City of Jefferson, 273 S.W. 170, 221 Mo.App. 369; Ward v. Christian County, 111 S.W.2d 182, 314 Mo. 1115; Smith v. Pettis County, 136 S.W.2d 282, 345 Mo. 839.
Lewis F. Randolph for respondent.
(1) This case is governed by the provisions of Sections 13488 and 13494, R. S. 1939. (2) The respondent, having been appointed Chief Deputy by the County Highway Engineer, and having performed the duties of that office, is entitled to receive the full salary provided for said office by Section 13488, R. S. 1939. Whalen v. Buchanan County, 111 S.W.2d 177. (3) Sections 13488, 13489, 13495 and the proviso portion of Section 13494 must be construed together and harmonized if possible. That can be done by construing Sections 13489-13495 and the proviso of Section 13494, as referring to deputies and assistants, other than chief deputies specifically provided for in Section 13488. Whalen v. Buchanan County, 111 S.W.2d 177. (4) Appellant's point relative to bond was not raised in the trial court and cannot be raised for the first time in this court. Benz v. Powell, 93 S.W.2d 877; St. Louis v. Wright County, 210 Mo. 502; Taylor v. K. C. So. Ry. Co., 213 Mo. 715; Scanlon v. Kansas City, 28 S.W.2d 84. (a) Section 8356, R. S. 1939, does not require bond of chief deputy, only assistants. The bond section, now 8356, was enacted in 1909, Laws 1909, p. 755. At that time there was no chief deputy provision. The law creating office of chief deputy was enacted in 1919, Laws 1919, p. 668. The statute creating chief deputy makes no reference to bond for chief deputy. (b) The language of the statute Section 8356, does not make the giving of such bond a condition precedent to the right to the office. The giving of such bond is a mere ministerial act for the security of the county. United States v. Bradley, 9 Law Ed. 448; Glavey v. United States, 45 Law Ed. 1247; State ex rel. v. Carroll, 106 P. 748.
Hyde, C. Bradley and Dalton, CC., concur.
This is an action to recover from Buchanan County the balance claimed to be due plaintiff for his salary as Chief Deputy to the County Highway Engineer. The defense made was that the County Court did not authorize plaintiff to be appointed (pleading Section 11862, R. S. 1929); and that no record of any such appointment or order permitting it was ever entered. (Pleading Section 11863, R. S. 1929.) The court entered judgment for plaintiff and defendant has appealed.
The judgment contained the following findings:
"That the plaintiff was duly appointed Chief Deputy County Highway Engineer by the Highway Engineer of Buchanan County, Missouri, on the 16th day of January, 1935, and that from and after said date until and including the 31st day of December, 1936, the plaintiff continued to act and serve under said appointment as Chief Deputy County Engineer of Buchanan County; . . . that from and after the 16th day of January, 1935, the plaintiff was paid a salary of One Hundred and Twenty-five Dollars ($ 125.00) per month instead of One Hundred and Sixty Dollars ($ 160.00) per month as provided in Section 11856, R. S. 1929, and that there is due and owing the plaintiff for unpaid salary during the year 1935 the sum of Four Hundred and Two Dollars and Fifty Cents ($ 402.50); . . . that during the year 1936, the plaintiff was paid at the rate of One Hundred and Forty Dollars ($ 140.00) per month instead of One Hundred and Sixty Dollars ($ 160.00) per month for the full twelve months' period; and that there is due and owing the plaintiff for unpaid salary as Chief Deputy County Highway Engineer for the year 1936 the sum of Two Hundred and Forty Dollars ($ 240.00), making a total amount due and owing the plaintiff for unpaid salary as Chief Deputy County Highway Engineer the sum of Six Hundred and Forty-two Dollars and Fifty Cents ($ 642.50) for which the plaintiff should have judgment."
Defendant contends that the evidence is not sufficient to support the finding that plaintiff was appointed Chief Deputy County Highway Engineer and was entitled to the salary provided for such office. Plaintiff relies upon Whalen v. Buchanan County, 342 Mo. 33, 111 S.W.2d 177. The evidence showed that on January 1, 1935, the term of the then County Highway Engineer expired; that the County Court did not reappoint him or appoint a new County Highway Engineer at that time; but that, by order of record, it did appoint plaintiff to be "Chief Clerk Engineer's Office." Plaintiff testified that he performed the duties of the engineer during the first fifteen days of January, 1935. On January 15, the County Court, by order of record, appointed "Glen B. Riddle, County Highway Engineer." Riddle testified that he appointed plaintiff as Chief Deputy; that he made a memorandum showing this appointment, together with that of his stenographer and two assistants, and gave it to the Deputy County Clerk; and that plaintiff thereafter performed the duties of Chief Deputy until the end of 1936, was in charge of the office in the absence of the Highway Engineer, and had authority to give orders to the other assistants. Riddle also said that he asked the court "different times for them to raise the amount to that salary" (statutory salary of Chief Deputy); but that "we were working under a very limited budget." One of the county judges said the reason the full salary was not paid was that "first $ 70,000.00 had to be deducted out of the road fund to pay interest on warrants and judgment bonds; consequently we were short of money." He said that plaintiff performed the duties of the office of Chief Deputy. The Engineer's office payroll, certified by Mr. Riddle each month to the court, merely listed the names, and amount of salary for each month, of each of his deputies and assistants, without any designation of position. (In the same form as that set out in Whalen v. Buchanan County, supra.) Mr. Riddle said the reason plaintiff was not paid the statutory salary "was a budgetary proposition;" and that "the county court makes up the budget." In the warrants issued for plaintiff's salary, he was designated in some as "Bookkeeper Highway Department," and "Bookkeeper Engineer's Office;" and in others as "Clerk Highway Engineer" and "Clerk Highway Department." Some warrants merely stated "for salary Highway Department;" while some said "Chief Clerk" and "Chief Clerk Highway Department." Plaintiff testified he performed all the duties of Highway Engineer during the first fifteen days of January, 1935, and as Chief Deputy thereafter; that he was in complete charge when the Engineer was away; that he "was appointed Chief Deputy by Mr. Riddle;" and that it was "the instructions of the county court" to make salary requisitions of the Engineer's Office show his salary at the amounts therein stated. There is no claim made that anyone else was ever appointed Chief Deputy by Mr. Riddle.
As to defense of lack of authorization or approval of plaintiff's appointment as Chief Deputy, plaintiff's contention is that the statute creating the position of Chief Deputy (Sec. 13488, R. S. 1939; Sec. 11856, Mo. Stat. Ann. 7050) does not require it. Defendant says it is required by the provisions of Sections 13494 and 13495, R. S. 1939. [Secs. 11862 and 11863, Mo. Stat. Ann. 7052.] These sections (with our italics to show parts to be construed) are as follows:
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Coleman v. Jackson County
...... supplemented by oral testimony, together with the payroll. records. (g) There is no requirement that the appointments be. in writing. Powell v. Buchanan County, 155 S.W.2d. 172; 11 C. J. 911, sec. 139; Secs. 13466, 13299, R. S. 1939. (3) There was no error in instructions 31 and 32 ......