State ex rel. Rothrum v. Darby

• Decision Date: 06 March 1940
• Docket Number: 36099
• 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

345 Mo. 1002

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

March 6, 1940

Reported at 345 Mo. 1002 at 1020.

Original Opinion of March 6, 1940, Reported at 345 Mo. 1002. [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

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

OPINION

HYDE

On Motion for Rehearing and to Transfer to Court en Banc.

Respondents' motion seeks either a rehearing in Division or a transfer to the Court en Banc. As a ground for transfer, respondents suggest that a federal question is involved. However, we decided the case under the provisions of our state Constitution. Respondents, also as grounds for their motion, reargue the issues of public policy, waiver and estoppel. As to these matters, we adhere to the rulings made in our opinion for the reasons therein stated. Respondents also argue the question of laches (which we note was not pleaded by respondents in their return), and to a considerable degree this is stated as it might apply to a mandamus action under present conditions. Conceding that officers of the city would be barred by the defense of laches from maintaining a mandamus proceeding in 1940, for the years herein involved, this issue would have to be decided in this case (if it had been pleaded) upon the situation that existed in 1937. At that time, relator was the only one to then seek such a remedy so far as this record shows, and (taking into consideration the matter of duress) there is nothing to indicate he did not commence this action as soon as he knew of his rights and learned the facts upon which they were based.

Respondents, as further grounds for their motion, seek to raise the question of whether "there are unincumbered funds available for the payment of this claim." They say that, in order to state a cause of action, it was essential for relator to plead the availability of such funds; and that, if there are no such funds, the result reached orders an act to be done that would actually be in violation of the city charter (Sec. 93, Art. 4) and the State Constitution (Sec. 12, Art. X), because "any unpaid salary due relator for the years 1932 to 1936 could lawfully and constitutionally be paid only out of the income and revenue of those years or from any surplus revenue in any succeeding year." Respondents admit that no such point as to pleading was made in the briefs.

Of course, it is well settled that when an attack is made on a pleading, at such a late stage and after no such assignment of error was timely made, it should be given the benefit of every reasonable inference, intendment and implication arising from a liberal construction. [Morrow v. Missouri Gas & Electric Service Co., 315 Mo. 367, 286 S.W. 106; Brock v. M. & O. Railway Co., 330 Mo. 918, 51 S.W.2d 100; Hawkins v. Paeben, 332 Mo. 479, 58 S.W.2d 437.] Looking to the pleadings herein, we find that relator alleged the existence of the charter provision cited by respondents (Sec. 93, Art. 4) prohibiting the Director of Finance from drawing a warrant "for which no appropriation has been made, or funds collected especially therefor, etc.;" and further alleged that "it was and is the duty of the respondents to pay to relator the sum of One Hundred and Sixty Dollars ($ 160) for each of the aforesaid months as salary for his services to Kansas City as aforesaid, but that respondents and each of them, wholly disregarded the duties enjoined upon them by the aforesaid statutes of the State of Missouri and charter and ordinances of Kansas City failed and neglected" to pay relator certain stated sums. Under this statement, the duty could only exist with funds available for payment. The same allegations were made as to amounts withheld after relator's salary was reduced to $ 140.00 per month by the 1933 ordinance. Considering respondents' pleadings and evidence, hereinafter referred to, we hold these allegations to be sufficient as against an attack at this stage, under the rule established by the cases hereinabove cited. [See also Hasty v. Marengo County Bank (Ala.), 89 So. 433; 18 R. C. L. 227, sec. 151; State ex rel. Fooshe v. Burley (S. C.), 61 S.E. 255, 16 L. R. A. (N. S.) 266.] Respondents' return to these allegations was that "they deny that by reason of the aforesaid statute of Missouri, charter and ordinances of Kansas City, Missouri, it was and is the duty of the respondents to pay to relator the sum of One Hundred and Sixty Dollars ($ 160) for each of the aforesaid months as salary for his services to Kansas City as aforesaid and deny that respondents and each of them wholly disregarded the duties enjoined upon them by the aforesaid statute of the State of Missouri, and charter and ordinances of Kansas City;" and (after same allegations concerning the period during which relator's salary was $ 140 per month) that "they admit that relator has made demand on respondents that they fulfill, perform and discharge their duties as aforesaid and pay to your relator the said sums of money, but respondents have failed and refused so to do, but deny that there was any legal obligation upon respondents so to do." Respondents raised no different issues as between the two periods of different ordinance pay rates.

Respondents' return then stated the issue of lack of funds, upon which they relied at the trial, as follows:

"Respondents further state that during the last five months of said fiscal years during which relator complains of reduction in his salary that there was not sufficient funds and revenue collected and in the treasury of Kansas City to pay the necessary operating expenses of Kansas City, including the full amount of the salaries of all employees of Kansas City as called for by the salary schedule ordinance, and that had respondents paid the full amount of salaries as provided in the salary schedule to all the...