Reed v. Jackson County

• Decision Date: 04 September 1940
• Docket Number: 36325
• Parties: Clarence B. Reed, Plaintiff in Error, v. Jackson County, Defendant in Error
• Court: Missouri Supreme Court

142 S.W.2d 862

346 Mo. 720

Clarence B. Reed, Plaintiff in Error, v. Jackson County, Defendant in Error

No. 36325

Supreme Court of Missouri

September 4, 1940

Appeal from Jackson Circuit Court; Hon. Emory H. Wright Judge.

Reversed and remanded (with directions).

Proctor & Proctor for plaintiff in error.

(1) Deputy county assessors are public officers whose salaries in Jackson County are fixed by law. Secs. 9752, 11834, R. S 1929; State ex inf. McKittrick v. Bode, 342 Mo. 162 113 S.W.2d 805. (2) Defense of estoppel is unavailable to defendant, not having been pleaded. Whalen v. Buchanan County, 342 Mo. 33, 111 S.W.2d 177; 21 C. J. 1242. (3) Defense of estoppel is unavailable to defendant as against public policy pertaining to full compensation of public officers. Mac Math v. United States, 248 U.S. 151, 39 S.Ct. 31; State ex rel. Moss v. Hamilton, 303 Mo. 302, 260 S.W. 466; Glavey v. United States, 182 U.S. 595, 21 S.Ct. 591; Pitt v. Board of Education, 216 N.Y. 304, 110 N.E. 612; Crutcher v. Johnson County, 79 S.W.2d 932; State ex rel. Ross v. King County, 71 P.2d 370; 118 A. L. R. 1458. (4) Class C deputies were not discharged and reappointed as D deputies. (a) No substantial evidence of intent to reclassify and reappoint. Sec. 11834, R. S. 1929. (b) The payroll sheets incompetent to show reclassification. Tehama County v. Sisson, 152 Cal. 167, 92 P. 64; Baird v. Divide County 58 S.D. 867, 228 N.W. 226; State ex rel. Ross v. King County, 71 P.2d 371. (5) The failure to make conclusions of law as to all claimants is reversible error. Fruin v. O'Malley, 242 Mo. 250, 145 S.W. 437; Green v. Whaley, 271 Mo. 636, 197 S.W. 355; O'Neal v. Perry, 96 S.W.2d 900; West v. West, 110 S.W.2d 318; Lindburg, Inc., v. Quinn, 123 S.W.2d 215; Wells v. Adams, 88 Mo.App. 215.

Jno. B. Pew and Rufus Burrus for defendant.

(1) Plaintiff's original petition failed to state a cause of action. It was not subject to amendment. The attempted amendment failed of its purpose. The pleader, in his effort to amend, stated no facts but conclusions only. No cause of action has yet been stated. Cunio v. Franklin County, 285 S.W. 1008, 315 Mo. 406; Luth v. Kansas City, 203 Mo.App. 113, 218 S.W. 902; Schulte v. Jefferson City, 273 S.W. 172; Sheridan v. St. Louis, 183 Mo. 25, 81 S.W. 1082; Am. Constitution Fire Assn. Co. v. O'Malley, 113 S.W.2d 795; Swift v. Central Union Fire Ins. Co., 217 S.W. 1003, 202 Mo.App. 419, 216 S.W. 935, 279 Mo. 606; Mallinckrodt Chemical Works v. Nemnich, 169 Mo. 397, 69 S.W. 355. (2) Even if this court should find that there was a good cause of action properly pleaded in the amended petition, it would not relate back to the date of the filing of the original petition so as to stay the Statute of Limitations against that part of the claims of various claimants that was accrued before December 11, 1931. (The amendment having been made December 11, 1936.) 37 C. J. 1078; Arpe v. Mesker Bros. Iron Co., 323 Mo. 640, 19 S.W.2d 690; Buel v. St. Louis Transfer Co., 45 Mo. 563; Walker v. Wabash Railroad, 193 Mo. 474; Bricken v. Cross, 163 Mo. 456; Selma, Rome & Dalton Ry. Co. v. Lacey, 49 Ga. 110; Lasater v. Fant, 43 S.W. 322; Eylenfeldt v. Illinois Steel Co., 165 Ill. 185, 46 N.E. 267; Illinois Cent. Railroad Co. v. Campbell, 170 Ill. 163, 49 N.E. 315; Foster v. St. Luke's Hospital, 191 Ill. 94, 60 N.E. 804; Heffron v. Rochester German Ins. Co., 220 Ill. 514, 77 N.E. 263; M., K. & T. Railroad Co. v. Bagley, 65 Kan. 188, 69 P. 193; Keppler v. Becker, 9 Ariz. 234, 80 P. 335; Simpson v. Hart, 60 Kan. 684, 57 P. 940; Lilly v. Charlotte C. & A. Ry. Co., 32 S.W. 142, 10 S.E. 932. (3) The trial court did not err in denying plaintiff in error a recovery because to so hold would require the finding that the so-called commissions dated in June, 1929, created a term of office for a four-year period, which would be in violation of Section 12 of Article X of the Missouri Constitution prohibiting the incurring of a debt "in any manner or for any purpose to an amount exceeding in any year the income and revenue provided for each year . . ." Sec. 12, Art. X, Mo. Const.; Sec. 11834, R. S. 1929; Ebert v. Jackson County, 70 S.W.2d 918; Book v. Earl, 87 Mo. 252; Trask v. Livingston County, 210 Mo. 594, 109 S.W. 659, 37 L. R. A. (N. S.) 1045; 6 McQuillin, Mun. Corp. (2 Ed.), sec. 2365, pp. 7, 8, 9. (4) Claimants were not de jure officers with a term of office entitling them to statutory salaries. De facto officers cannot sue for salaries. Secs. 11834, 11844, R. S. 1929; State ex rel. v. Gordon, 238 Mo. 169, 142 S.W. 315; Schulte v. Jefferson City, 273 S.W. 170; State ex rel. v. Sartorius, 95 S.W.2d 873; 46 C. J. 1053. (5) Claimants are estopped. (a) By their agreements. (b) By operation of laws. Barfield v. Atlanta, 187 S.E. 410; Steele v. Chattanooga, 84 S.W.2d 590; Butler v. Barr, 18 Mo. 357; Galbreath v. Moberly, 80 Mo. 484; State ex rel. v. Player, 284 Mo. 496, 218 S.W. 859; McNulty v. Kansas City, 198 S.W. 185, 201 Mo.App. 562; State ex rel. v. Messerly, 198 Mo. 351, 95 S.W. 913; 43 C. J., sec. 1173; Rau v. Little Rock, 34 Ark. 303; Chandler v. Johnson Co., 105 Tenn. 653; City of Lexington v. Rennick, 105 Ky. 779, 49 S.W. 787; 2 McQuillin's Mun. Corp. (2 Ed.), pp. 225, 241, 249, 273.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

BRADLEY

Clarence B. Reed, plaintiff below and plaintiff in error here, filed two separate suits against Jackson County. One was on his own behalf and the other, in 49 counts, was as assignee for 49 others. Judgment in the total sum of $ 41,673.25, plus interest, was asked. These suits were consolidated and tried together as one cause. The purpose was to recover an alleged balance due each individual as deputy assessor of Jackson County. A jury was waived; the court found for defendant, and the cause was brought up by writ of error.

From January, 1931, to May, 1931, both inclusive, plaintiff and his assignors were deputy assessors of Jackson County. Some were in class B; some in class C, and some in class D. [See Sec. 11834, R. S. 1929, Mo. Stat. Ann., p. 7040.] This section has been amended, Laws 1933, p. 373 but the amendment does not affect the present case. The pay for these classes of deputy assessors in Jackson County is fixed by the statute (Sec. 11834) at $ 2100 per year for the B's, $ 1800 per year for the C's, and $ 6 per day for the D's "for such time as they may be actually employed in the discharge of their duties." As we understand, this cause involves the claims of 2 class B's, 25 class C's and 23 class D's. The county was hard put for money, and, beginning January 1, 1931, each deputy, over the period concerned, was paid, each month, on a time base, less than actually put in, and this arrangement was adopted and followed in order to avoid the discharge of any deputy. In January, 1931, Frank R. English was the assessor, W. F. Cook was chief deputy, and Hon. Harry S. Truman, now U.S. Senator, was presiding judge of the county court. Senator Truman testified that "Mr. Cook and Mr. English came to the county court and stated that if they were allowed to put their deputies on a day basis or a per diem basis . . . they would rather be allocated a certain amount of money for the purpose of operating their office rather than have the number of deputies specified . . . People were being discharged everywhere and everybody was making an endeavor to keep as many people at work as possible, and the county court agreed with Mr. English and all the rest of the departments to allow them to pay their men by the day. . . . In other words, have a larger number of D deputies instead of having a group of A, B, C, and D deputies, as the law provided; that allowed them to pay a man ten days or twenty days or thirty days, however many he worked. . . ."

The appointment of each deputy was typed or printed, and captioned "commission of deputy county assessor;" was dated, gave the name of the deputy, and his or her classification, and was signed by the assessor. On the commission was a typed or printed oath of office, which oath each deputy signed and took.

The monthly payroll (prepared in the county clerk's office) contained the names of the deputies, the class, the purported number of days each worked during the month (except as to two), gave the pay as $ 6 per day, the total for each for the month, and a column headed "remarks," and from January 1, 1931, over the period involved, the payrolls carried all the deputies, with the two exceptions, as in class D.

Before the pay check or warrant for the month was delivered, the deputy signed the payroll sheet under "remarks." Always the number of purported days each deputy worked, as shown on the monthly payroll, was, as stated, supra, less than the number of days actually worked. To illustrate: Mary Sartor was designated as in class D in her appointment or commission and under the statute her pay was $ 6 per day for the time she actually put in. In January, 1931, she actually worked 26 days, but was paid for only 22, as her time put in appeared on the January payroll. And so it went each month for each deputy over the period involved, and for Mary Sartor, the total holdback was $ 843.50. Each deputy consented in advance to this modus operandi and each signed the monthly payroll knowing full well that the days worked, as shown thereon, was not correct. Quite a few of the deputies were witnesses and some frankly admitted that they consented in advance to the plan and were "glad to do it." Others were not so frank. However, we proceed on the theory that each deputy freely consented in advance to the arrangement and made no complaint until out of office.

The trial court found "that the C deputies, by and through the arrangement to reduce the pay instead of reducing the number of...