State ex rel. Rothrum v. Darby

• Decision Date: 06 March 1940
• Docket Number: No. 36099.,36099.
• Citation: 137 S.W.2d 532
• Parties: STATE OF MISSOURI at the relation of JOHN C. ROTHRUM, Appellant, v. A.L. DARBY, Director of Finance et al.
• Court: Missouri Supreme Court

137 S.W.2d 532

STATE OF MISSOURI at the relation of JOHN C. ROTHRUM, Appellant, v. A.L. DARBY, Director of Finance et al.

No. 36099.

Supreme Court of Missouri.

Division One, March 6, 1940.

Appeal from Jackson Circuit Court. — Hon. Darius A. Brown, Judge.

REVERSED AND REMANDED (with directions).

Frederick E. Whitten and John H. Haley for relator.

(1) Where the amount of salary to be paid to a municipal fireman is fixed by an ordinance of the municipality an agreement by a municipal fireman to accept less salary than the amount fixed by ordinance is against public policy, illegal and void. Such an agreement and the acceptance of the lesser amount cannot operate either as a contract estoppel, waiver or accord and satisfaction to preclude recovery by the fireman of the unpaid amount of the salary fixed by ordinance. Orthwein v. St. Louis, 265 Mo. 556, 178 S.W. 87; Glavey v. United States, 182 U.S. 595, 45 L. Ed. 1247, 21 Sup. Ct. 801; Grant v. Rochester, 79 App. Div. 460, 80 N.Y. Supp. 522, 175 N.Y. 473, 67 N.E. 1083; Anno. 70 A.L.R. 975; Anno 118 A.L.R. 1458; Bishop v. Omaha, 264 N.E. 447; State ex rel. Pike v. Bellingham, 183 Wash. 439, 48 Pac. (2d) 602; State ex rel. Kneg v. Seattle, 28 Pac. (2d) 1020; Peterson v. Parsons, 139 Kan. 701, 33 Pac. (2d) 715; Town of Nortonville v. Woodward, 191 Ky. 730, 231 S.W. 224; Art. IV, Secs. 91, 93, Charter of Kansas City. (2) Where the number of officers or employees of a municipality and the amount of salary to be paid to them is fixed by law, the inability of the municipality to pay other expenses of the municipality and the full amount of the salaries as fixed by law is immaterial and constitutes no defense to an action to compel the payment of the full amount of such salary, particularly when at all times the municipality had sufficient revenue to pay the full amount of said salary as fixed by law. State ex rel. Reynolds v. Jost, 265 Mo. 51, 175 S.W. 591. (3) Where the position of municipal fireman is created by law and the salary to be paid to one occupying that position is fixed by law after the person holding such position has performed the duties incident thereto, his right to the full amount of the salary prescribed by law is a vested property right of which he cannot be deprived without due process of law and where the power to fix the amount of salary is vested in the legislative body of the municipality and the administrative officers of the municipality, by virtue of the authority vested in them by the charter of the municipality to pay or withhold the payment of the salary prescribed by law to be paid to such firemen, they use that power to reduce the amount of the salary to be paid to such fireman and to withhold from said firemen a part of the salary prescribed by law to be paid to him and where application is made to a state court to compel the administrative officers of the municipality to restore to a municipal fireman the amount of the salary fixed by law to be paid to him after he has performed the duties of such fireman and such court refuses to compel the restoration thereof, said fireman is thereby deprived of his property without due process of law, contrary to Article II, Section 30 of the Constitution of Missouri and to Amendment XIV to the Constitution of the United States. Art. III, Sec. 31, Charter of Kansas City; Amend. XIV, U.S. Const.; Art. II, Sec. 30, Mo. Const.; State ex rel. Ake v. Kansas City, 221 Mo. App. 784, 288 S.W. 85; State ex rel. v. Shepherd, 192 Mo. 497, 91 S.W. 477; Givens v. Davies County, 107 Mo. 603, 17 S.W. 998; 12 C.J., sec. 989, p. 1214; 46 C.J., sec. 233, p. 1016; Hagar v. Reclamation District, 111 U.S. 701, 4 C. Ct. Rep. 633; Home Tel. & Tele. Co. v. Los Angeles, 227 U.S. 278, 33 Sup. Ct. 312. (4) Aside from considerations of public policy, relator is not bound by the promises contained in the applications for leave of absence which he executed because: (a) His offer to forego his salary was never accepted, because he was never notified that his leave of absence was granted 13 C.J., sec. 68, p. 272; Daggett v. Kansas City Structural Steel Co., 334 Mo. 207, 65 S.W. (2d) 1036; Wayland et ux. v. Pendleton, 337 Mo. 190, 85 S.W. (2d) 492. (b) There was no consideration sufficient to support relator's said promises, the payment to him of a part of the salary prescribed by law to be paid to him, being no consideration. 13 C.J., secs. 207, 694, pp. 351, 627, also sec. 144; In re Woods Estate, 232 S.W. 671. (c) Because the said applications for leave of absence were executed by the relator under duress the directions to execute them having come to him as all other orders from fire headquarters and from his superior officers who were in a position to dictate to him. 13 C.J., sec. 322, p. 403; Westlake and Button v. St. Louis, 77 Mo. 47; Bethany Savs. Bank v. Cushman, 66 Mo. App. 102. (d) The payment to relator of less than the salary fixed by law pursuant thereto cannot be and constitute an accord and satisfaction of relator's claim to the entire amount of the salary as fixed by ordinance because there is no consideration therefor, the amount of relator's claim being liquidated and undisputed. Enright v. Shaden, 242 S.W. 89; Chaplin v. Adams, 204 Mo. App. 659, 219 S.W. 132. (e) Relator is not estopped by the execution of the applications for leave of absence and the acceptance of less salary than that prescribed by law pursuant thereto. Whalen v. Buchanan County, 111 S.W. (2d) 177; 21 C.J., secs. 131, 132, p. 1129; Charter Oak Inv. Co. v. Felke, 60 S.W. (2d) 655; Morris v. McMahan, 75 Mo. App. 494; 21 C.J., secs. 130, 137, pp. 1126, 1138. (f) The direction to sign the applications for leave of absence and to accept the less amount of salary having been given to relator as all other orders in the fire department and respondents having the authority to discharge relator, the execution of said applications and acceptance of said lesser salary were done under duress excluding the possibility of waiver. 67 C.J., sec. 7, p. 306; Westlake & Button v. St. Louis, 77 Mo. 47; Givens v. Davies County, 107 Mo. 603, 17 S.W. 998; 67 C.J., p. 299.

Sam C. Blair and Marcy K. Brown, Jr., for respondents.

(1) The trial court did not err in quashing the alternative writ of mandamus, and denying the application for a peremptory writ of mandamus, and dismissing this action and rendering judgment for respondents, because: (a) since relator was not a public officer but was employed by will, the matter of salary reduction was legal and justified; (b) it is the duty of the city to live within its revenue and the matter of salary reduction employed to attain this end, under circumstances of depression and lack of revenue, was the only reasonable method and did not violate any charter or ordinance provision; (c) the leaves of absence signed by relator were legal and binding; (d) the leaves of absence signed by relator constitute a legal donation of that portion of his salary and services to the city; (e) the facts, as shown by the evidence, constitute a complete waiver by relator of any right to such additional salary; and (f) the facts shown by the evidence constitute a complete estoppel of the relator's right to collect any further compensation. Charter of Kansas City, Sec. 46, Art. II; Barfield v. Atlanta, 187 S.E. 407; Steele v. Chattanooga, 84 S.W. (2d) 591; Lehman v. Toledo, 192 N.E. 537; Whalen v. Special Justice, 3 N.E. (2d) 1005; Coughlin v. Milwaukee, 279 N.W. 62; People ex rel. Mulvey v. Chicago, 12 N.E. (2d) 13; Taylor v. Philadelphia, 190 Atl. 663; Snell v. Byington, 37 Pac. (2d) 734; State ex rel. Hefferman v. Hoquiam, 56 Pac. (2d) 1012; Schuh v. Waukesha, 265 N.W. 699; People ex rel. Henryson v. Elgin, 5 N.E. (2d) 856; Nelson v. Eveleth, 267 N.W. 261; Connor v. Chippewa Falls, 279 N. W. 640; Altenberg v. Superior, 280 N.W. 342. (2) The doctrines of both waiver and estoppel are applicable to relator and preclude his right of recovery herein. Galbreath v. Moberly, 80 Mo. 484; Leach v. Railroad Co., 86 Mo. 27; Wood v. Kansas City, 162 Mo. 303, 62 S.W. 433; McNulty v. Kansas City, 201 Mo. App. 562, 198 S.W. 185; Henderson v. Koenig and St. Louis; 192 Mo. 690, 91 S.W. 88; State ex rel. Whalen v. Player, 280 Mo. 496, 218 S.W. 859; State ex rel. Kinsey v. Messerly, 198 Mo. 351, 95 S.W. 913; State ex rel. Buchanan County v. Imel, 242 Mo. 293; People ex rel. Mulvey v. Chicago, 12 N.E. (2d) 13. (3) Relator was guilty of laches sufficient to bar recovery. People ex rel. Mulvey v. Chicago, 12 N.E. (2d) 13; City of Paducah v. Gillispie, 115 S.W. (2d) 574; Davis v. Paducah, 115 S.W. 578. (4) Plaintiff was not a public officer. Mo. Const., Sec. 8, Art. XIV; State ex rel. v. Johnson, 123 Mo. 43; State ex rel. v. Gordon, 238 Mo. 168; State ex rel. Pickett v. Truman, 233 Mo. 1018; Little River Drain. Dist. v. Lassiter, 325 Mo. 493. (5) As to constitutional and charter provisions concerning expenditures of revenues. Mo. Const., Sec. 12, Art. X; Lamar Water Co. v. Lamar, 128 Mo. 188; Harris v. Mortgage Co., 244 Mo. 664; State ex rel. Pyle v. University City, 8 S.W. (2d) 73; State ex rel. v. Neosho, 203 Mo. 40; State ex rel. v. Gordon, 251 Mo. 303. (6) Discussion of relator's authorities. Orthwein v. St. Louis, 265 Mo. 556, 178 S.W. 87; Glavey v. United States, 182 U.S. 595, 45 L. Ed. 427, 21 Sup. Ct. 801; Gant v. Rochester, 80 N.Y. Supp. 522; Hobbs v. Yonkers, 102 N.Y. 13; Bishop v. Omaha, 264 N.W. 447; State ex rel. Pike v. Bellingham, 183 Wash. 439, 48 Pac. (2d) 602; Kenz v. Seattle, 28 Pac. (2d) 1020; State ex rel. Osborn v. Seattle, 67 Pac. (2d) 913; Peterson v. Parsons, 139 Kan. 701, 33 Pac. (2d) 715; Town of Nortonville v. Woodward, 231 S.W. 224; Lexington v. Rennick, 49 S.W. 787, 50 S.W. 1106; Bates v. St. Louis, 154 Mo. 18, 54 S.W. 439; State ex rel. Chapman v. Walbridge, 153 Mo. 194, 54 S.W. 447; State v. Gordon, 245 Mo. 12, 149 S.W. 638; DeBoest v. Gambell, 58 Pac. 72; Chandler v. Elgin, 278 Pac. 581; Bannister v. New York, 82 N.Y. Supp....