State v. Ellison

• Decision Date: 15 March 1919
• Docket Number: No. 20687.,20687.
• Citation: 278 Mo. 42,210 S.W. 881
• Parties: STATE ex rel. McNULTY v. ELLISON et al.
• Court: Missouri Supreme Court

210 S.W. 881

278 Mo. 42

STATE ex rel. McNULTY v. ELLISON et al.

No. 20687.

Supreme Court of Missouri, in Banc.

March 15, 1919.

Rehearing Denied April 7, 1919.

Certiorari by the State, on relation of Owen H. McNulty, against James Ellison and others, Judges of the Kansas City Court of Appeals, and the City of Kansas City. Writ quashed.

Numa F. Heitman, of Kansas City, for relator.

E. M. Harber, A. F. Smith, and Benjamin M. Powers, all of Kansas City, for respondent Kansas City.

BLAIR, J.

Certiorari. The writ brings before us the record in McNulty v. Kansas City, decided by the Kansas City Court of Appeals, 198 S. W. 185.

I. (a) Counsel contends that the statement of facts in the opinion of the Court of Appeals is out of accord with the record in that case, and urges that an examination of that record will establish this. In State ex rel. v. Ellison, 273 Mo. 218, 200 S. W. 1042, this court adopted the doctrine that it would "not go beyond the opinion to ascertain the facts." It thus appears that harmony of written opinions, not harmony of decisions, is the thing which this court holds was intended by the framers of the Constitution. As the writer of this has done, so must counsel in this case do—submit to the application of this rule as announced in the case cited.

(b) It is urged that we must accept the facts stated in the motion for rehearing as true, else there is no use for our requiring such motion to be filed before our writ will issue. Such a motion does not prove itself, and can be proved only by the record. The record we do not examine, as pointed out, supra. The point must be ruled against relator.

II. Secondly, counsel contends the facts stated in the opinion of the Court of Appeals do not justify the conclusion reached, and that the decision conflicts with decisions of this court. This question requires that we set out the facts as stated by the Court of Appeals. They are as follows:

"When city taxes on real estate in Kansas City become delinquent, payment thereof is enforced by a sale of each delinquent tract to a purchaser who pays to the city the unpaid tax, with interest, penalties, and costs, and receives from the city treasurer a certificate of purchase acknowledged by him before one of the clerks in his office who holds a notary public's commission for this purpose. For this acknowledgment the sum of 50 cents is included in the amount paid to the city by the purchaser, that being the fee allowed by statute to a notary for taking and certifying to an acknowledgment. These delinquent sales, and the consequent execution of the certificate of purchase, cover a period of about two weeks in November or December of each year; and at the close of said sales many certificates are acknowledged.

"Plaintiff was a clerk in the treasurer's office from and including the year 1904 down to June, 1910, and was the notary before whom the treasurer acknowledged the certificates of purchase at the end of the two weeks of delinquent sales in each year, and also the tax deeds to such tracts as were never redeemed. On August 12, 1912, he brought this suit to recover from the city the sum of $2,850.50 as due him for acknowledgments taken, as above indicated, during the years 1908 and 1909. He recovered judgment in the trial court for the full amount sued for, and the city has appealed.

"It is admitted that the above sum represents the total amount of notary fees for such acknowledgments taken by plaintiff while in the treasurer's office during those two years, and that the same were collected by the treasurer and paid into the general fund of the city treasurer. It is the contention of the city that plaintiff waived the right to receive payment of these fees, and that he is now estopped from claiming them.

"In 1885 the Supreme Court of this state held, in Leach v. Hannibal & St. Joseph R. Co., 86 Mo. 27, 56 Am. Rep. 408, that a notary public in the service of a railway company could waive his right to compensation for notarial services; that, having entered into a contract of service to the railway company for a fixed salary, he prima facie agreed to give the latter his entire time, and the notarial work having been done in that time, then, in the absence of any `agreement, or understanding, or line of conduct between the parties' showing that such employ was to receive the statutory fees for the notarial service rendered his employer in addition to his stipulated salary, he could not recover of his employer for such notarial service, and in the absence of any such showing he would be deemed to have waived the right to claim such fees.

"Following this rule thus laid down, the city, in February, 1892, passed an ordinance known as Ordinance No. 3910, which provided that one of the clerks in the treasurer's office should be a notary public; that the salary paid by the city to him as a clerk should be payment in full for all services rendered by him, including those of a notarial character, and that all fees paid for such notarial work should be turned into the city treasury.

"Under this ordinance, in April, 1892, one Wood became a clerk in the treasurer's office, and was the notary who took the acknowledgments during his stay therein, which was until February, 1893. He sued for his fees, and in Wood v. Kansas City, 162 Mo. 303, 62 S. W. 433, the Supreme Court held the above-mentioned ordinance void, and that since it was void it was the same as if it had never existed, and Wood was not estopped from recovering his fees by reason of having accepted his salary for his services as clerk, for the reason that the ordinance was nothing, and he had done nothing to waive his fees or to create an estoppel. On page 310 of 162 Mo., on page 434 of 62 S. W., of the Wood Case, the court say: `It is not claimed that he entered into any express contract, aside from the ordinance, by which his fees as notary were to be received and retained by defendant, and, the ordinance being void, there was no express contract at all with respect thereto; hence nothing to estop plaintiff from claiming them by reason of said ordinance.'

"And on page 311 of 162 Mo., on page 435 of 62 S. W., in said Wood Case, the court, in distinguishing it from the Leach Case, say that Leach may have `entered into a contract, express or implied, by which in consideration of his employment at a fixed salary he was to have no fee for such services. And after having thus rendered the services he could not, of course, recover the fees allowed him by law therefor. In the case at bar (the Wood Case) there was no such contract.' (Italics ours.)

"In other words, the Supreme Court held that in the Wood Case there was no agreement or line of conduct on Wood's part by which he consented that he would allow the city to have the notary fees and accept in full of his services the fixed salary paid him, and hence he could not be denied his fees, but was entitled to them in addition to his salary.

"(1) We are of the opinion that the case we are now called upon to decide differs in this respect from the Wood Case. In the case at bar, not only did plaintiff make an express agreement to waive his notary fees and accept a stipulated salary in full for all his services, including those of a notarial character, but he thereafter continued on in the service of the city without change of terms, and under circumstances that necessarily imply that he waived the right to the notarial fees and accepted in lieu thereof a certain fixed monthly sum paid to him as salary in full of all his services, including those of a notarial character. If he did this, he is not entitled to now turn around, after his relations with the city have terminated, and, nearly three years after the notarial services were performed, demand the fees therefor in addition to the money he received from the city, with the manifest intention on his part, and the understanding implied from the circumstances, that he was not charging for his notarial services, but was accepting his monthly stipend in full of all services. The facts which we think manifest that agreement, intention, and course of conduct on his part are as follows: It is conceded that the certificates of purchase for each year were executed and acknowledged by the treasurer at one time, and the work of the notary in filling out and attesting the certificates of acknowledgments was done during his office hours as clerk in the treasurer's office. If in doing this at any time he had to work overtime, he was paid for such overtime in accordance with the regular rates prescribed for overtime work as a clerk.

"After the decision in the Wood Case the city, in 1901, repealed Ordinance No. 3910, hereinabove mentioned, which required the notary clerk to accept only his salary as clerk, and directed the turning of the notary fees into the city treasury, and enacted an ordinance, No. 18581, which provided that the notary clerk in the treasurer's office should enter into a contract, agreeing to accept as compensation for his services as clerk the sum of $5 per month, and that he should receive, in addition thereto, the notarial fees accruing in said office. Under this ordinance the notary clerk in the treasurer's office got $5 per month and the notary fees. In this way such clerk's compensation, instead of running from $75...