Stratton v. City of Warrensburg, 20189.

• Citation: 167 S.W.2d 392
• Decision Date: 14 December 1942
• Docket Number: No. 20189.,20189.
• Parties: W.E. STRATTON, APPELLANT, v. CITY OF WARRENSBURG, MISSOURI, RESPONDENT.
• Court: Court of Appeal of Missouri (US)

167 S.W.2d 392

W.E. STRATTON, APPELLANT, v. CITY OF WARRENSBURG, MISSOURI, RESPONDENT.

No. 20189.

Kansas City Court of Appeals, Missouri.

December 14, 1942.

Appeal from Johnson Circuit Court. — Hon. Leslie A. Bruce, Judge.

AFFIRMED.

H.J. Salsbury for respondent.

(1) As a matter of law the office of street commissioner of the city of Warrensburg was abolished or suspended by the city council. Appellant is not entitled to any recovery because he could not be the incumbent of a non-existent office. Resolution No. 120, City of Warrensburg, Mo.; Ordinance 402, City of Warrensburg, Mo.; Sec. 6879, R.S. Mo. 1939; Secs. 137-143, Rev. Ord. City of Warrensburg, 1935; Secs. 6946, 6948, R.S. Mo. 1939; Blandings v. Las Vegas, 280 Pac. 644, 68 A.L.R. 1273; 1 McQuillan (2 Ed.), sec. 386, pp. 958-959; State ex rel. v. Weeks, 38 Mo. App. 566; O'Laughlin v. Kirkwood, 107 Mo. App. 302; State ex rel. v. Williams, 335 Mo. 816, 74 S.W. (2d) 365. (2) If there was any legal irregularity in the means adopted by the city to abolish or suspend the office of street commissioner, a city officer can take no advantage of this in an action for salary claimed to be due him, unless he has called the matter to the attention of the city authorities. Wilkinson v. Birmingham, 193 Ala. 139, 146, 68 So. 999. (3) The action of the council and mayor in passing Resolution No. 120 operated as an effective removal of plaintiff as street commissioner and deprived him of any claim for salary in futuro. Sec. 6875, R.S. Mo. 1939; State ex rel. v. Walker, 68 Mo. App. 110. (4) The plaintiff by his conduct abandoned any claim he might otherwise have had to the office and hence is entitled to no compensation in this action. Gracey v. St. Louis, 213 Mo. 384, 397.

M.D. Aber for appellant.

(1) Plaintiff was an officer of defendant. Secs. 6879, 6891, R.S. 1939; Sec. 138, Defendant's Ordinances (Abst., p. 64); State v. Maroney, 191 Mo. 53; U.S. v. Hartwell, 6 Wall. 385, 393. (2) His last time was for a period of one year from April 19, 1938, or until his successor is appointed and qualified. Plaintiff's Commission (Abst., p. 6); Sec. 138, Revised Ordinances (Abst., p. 64); Sec. 5, Art. XIV, Mo. Const.; Sec. 12820, R.S. 1939. (3) Such successor was appointed and qualified April 16, 1940. Agreed Statement of Facts (Abst., p. 27). (4) Plaintiff's salary was $95 a month. Defendant's answer (Abst., p. 4). (5) Such salary cannot be changed during time for which officer is commissioned. Sec. 6893, R.S. 1939. (6) Salary is an incident or appurtenant to an office. Whether the incumbent performs the duties of the office has nothing to do with his right to the salary. Gracey v. St. Louis, 213 Mo. 384; Bates v. St. Louis, 153 Mo. 18; Givens v. Davies County, 153 Mo. 18; Mechem's Public Office & Officers, sec. 855; Throop on Public Officers, sec. 443; 46 C.J. 1029. (7) Resolution No. 120 in no way affected plaintiff's tenure of office or his right to his salary because (a) It is incompetent to suspend or affect the operation of an ordinance by any legislation of less dignity. 43 C.J. 568, and cases cited. (b) It does not by its terms purport or attempt to abolish or to suspend the office of street commissioner or to change the salary. It is more capable of a construction continuing plaintiff in office than as an attempt to legislate him out of office. Resolution No. 120 (Abst., p. 45). (8) There was no abandonment of his office by plaintiff. Gracey v. St. Louis, 213 Mo. 384; State v. Kansas City, 303 Mo. 50; State v. Walbridge, 153 Mo. 194; Givens v. Davies County, 107 Mo. 603; 46 C.J. 981, Col. I; Steingruber v. San Antonio, 220 S.W. 77; Leonard v. Terre Haute (Ind.), 93 S.E. 872; Blanke v. Toombs (Ky.), 14 S.W. (2d) 153; Selby v. Portland (Ore.), 58 Am. Rep. 308-9; State ex rel. Flynn v. Ellis (Mont.), 98 Pac. (2d) 879. (9) Upon the entire record, plaintiff continued in office as street commissioner until appointment of his successor the night of April 16, 1940; was not paid as such from May 1, 1939, until and including April 16, 1940, and is therefore entitled to judgment for his salary with interest from said date. Sec. 5, Art. XIV, Mo. Const.; Sec. 12820, R.S. 1939; Sec. 138, Defendant's Ordinance (Abst., p. 65); Gracey v. St. Louis, 213 Mo. 384; Langston v. Howell Co., 336 Mo. 444, 76 S.W. (2d) 99; State v. Smith, 152 Mo. 512; State v. Maroney, 191 Mo. 531; State v. Walbridge, 119 Mo. 583; State v. McDonnell, 280 S.W. 66.

BOYER, C.

Plaintiff appeals from an adverse judgment in a suit to recover salary as street commissioner alleged to be due from defendant. The case was tried before the court without a jury. It is here by transfer from the Supreme Court, where the appeal went upon plaintiff's request, and on his theory that the Constitution of the State provided for his continuance in office. The case was there docketed as No. 37843. In transferring the appeal to this court the opinion holds that the Supreme Court had no jurisdiction for any reason appearing in the record; that defendant is not a political subdivision of the State within the meaning of the Constitution; and that the controversy does not involve a sum sufficient to confer jurisdiction.

The petition alleges that plaintiff on the 19th day of April, 1938, became the duly appointed, qualified and acting street commissioner of the City of Warrensburg for a term of one year and until his successor was appointed and qualified; that the ordinances of said city fixed the salary of said officer at the sum of $95 per month; that no amount of said salary was paid plaintiff after April, 1939, and that said salary was due and owing from the first day of May, 1939, to the 16th day of April, 1940, at which time a successor to plaintiff was appointed who thereafter qualified and assumed the duties of the office; that by virtue of the statutes and ordinances of defendant and the incumbency of his said office by plaintiff the defendant was indebted to the plaintiff in the sum of $1095.66, for which judgment was demanded.

The answer admits plaintiff's appointment and qualification as street commissioner for a term of one year ending April 18, 1939, and that the salary of said officer was $95 per month during the term of office; and for further answer defendant alleges that on the expiration of plaintiff's said term of office said office was by resolution discontinued by the city council with the approval of the mayor; that plaintiff acquiesced in said discontinuance and that thereafter he did not perform or offer to perform any of the duties appertaining to said office but accepted employment under the defendant city as an employee of the street and alley committee of the council of defendant on a month to month basis at a wage of $75 per month; that he continued in said employment until April 16, 1940, and accepted and received the sum and amount of $75 as full and complete remuneration for his said services; that plaintiff made no claim to the office of street commissioner prior to filing suit; and that having voluntarily accepted other and different employment plaintiff is estopped to claim that he was or is entitled to compensation as street commissioner for said period of time.

The answer further alleges that on the 16th day of April, 1940, the defendant by ordinance duly passed by the council and approved by the mayor re-created the office of street commissioner and appointed a suitable person to fill said office, and that said appointee duly qualified and entered upon the duties of said office.

The reply in effect denies all affirmative defense pleaded, but admits that plaintiff was employed by defendant city and was paid a wage of $75 a month and that he performed the work of an ordinary employee, and that his successor was duly appointed and qualified on April 16, 1940. The reply further sets forth plaintiff's commission as street commissioner; the resolution of the council approved by the mayor April 5, 1939, and various sections of the city ordinances, and other matters of evidence, by virtue of which plaintiff claims the right to the salary of the office, as holdover, after the expiration of his regular term to the time of the appointment of his successor.

There is evidence that plaintiff held the office of street commissioner for a period of four years and that he was appointed each year for a term of one year and commissioned as said officer for said term "or until his successor is appointed and qualified."

Plaintiff testified that near the end of his term "in the Spring of 1939, Mr. Shelton told me that he thought possibly they wouldn't appoint anybody. They had this WPA work. A WPA project was under way in the city at that time and it still continues under the same project." Mr. Shelton was the mayor. Plaintiff further said that as street commissioner he had under his control the tools of the city which were kept in buildings and that he had the keys to each building. Another city employee also had keys. He stated that when demand was made for the keys he kept them, but generally speaking the city property was turned over and used by WPA. There was no change made of the locks on the building in the Spring of 1939, but they were changed April 3, 1940. Plaintiff had access to the building during the year 1939, and until April, 1940.

On cross-examination plaintiff claimed that he had tendered a bond for a new term either to the city clerk or the mayor, or had told them that the bond was ready. Plaintiff was informed that it would not be needed; "that they wasn't going to have any street commissioner." "Q. When was the first knowledge you had that you weren't to continue on as street commissioner? A. Well, it was not definite. They told me that night they figured on doing away with street commissioner. The report came out that the city council passed a resolution abolishing the street commissioner job during WPA. Q. You did then receive immediate knowledge that the resolution had been passed? ...