The State ex rel. Kansas City Loan Guarantee Company v. Kent

• Decision Date: 02 February 1903
• Citation: 71 S.W. 1066,98 Mo.App. 281
• Parties: THE STATE OF MISSOURI ex rel. KANSAS CITY LOAN GUARANTEE COMPANY, Respondent, v. D. V. KENT, City Auditor, Appellant
• Court: Kansas Court of Appeals

71 S.W. 1066

98 Mo.App. 281

THE STATE OF MISSOURI ex rel. KANSAS CITY LOAN GUARANTEE COMPANY, Respondent, v. D. V. KENT, City Auditor, Appellant

Court of Appeals of Missouri, Kansas City

February 2, 1903

Appeal from Jackson Circuit Court.--Hon. J. H. Slover, Judge.

REVERSED.

Judgment reversed.

L. E Durham and R. J. Ingraham for appellant.

(1) Relator must establish its clear legal right to the warrant sought. State ex rel. v. Newman, 91 Mo. 445; State ex rel. v. Williams, 99 Mo. 291; State ex rel. v. Lesueur, 136 Mo. 452; State ex rel. v Johnson, 123 Mo. 43. (2) Relator's right to said warrant as assignee is determined by the contract of employment between Dock Wilson and Kansas City. Sumrall v. Ins. Co., 40 Mo. 27; Babb v. Taylor, 56 Mo 311; Thompson v. Roatcap, 27 Mo. 283. (3) Kansas City, in making such contract, acted in its private or business capacity as distinguished from its governmental or public capacity. Bank v. Arkansas City, 76 F. 282; Indianapolis v. Gas Light Co., 66 Ind. 396; Savings Fund v. Philadelphia, 31 Pa. St. 183; Gas Light Co. v. New Orleans, 42 L. Ann. 188; Elliott on Municipal Corporations, sec. 22; 1 Dillon on Municipal Corporations (3 or 4 Ed.), sec. 66; Baily v. Philadelphia, 184 Pa. St. 494. (4) Acting in its private or proprietary capacity, Kansas City had under its charter the power to make any contract with its employees that any private corporation or individual could make. Art. 3, sec. 1; art. 13, sec. 1; art. 6, sec. 12; art. 4, sec. 15, Kansas City charter; Indianapolis v. Gas Light Co., 66 Ind. 66; Galena v. Corwith, 48 Ill. 423. (5) And all ordinances of Kansas City existing at the time of the said contract or employment, relating to the subject-matter or manner of execution of the contract, entered into and became a part of it. Pryor v. Kansas City, 153 Mo. 135; St. Charles v. Hackman, 133 Mo. 634; Society v. Clements, 140 U.S. 226. (6) Further, relator being a resident of Kansas City must take notice of all ordinances of the municipality. Jackson v. Railroad, 118 Mo. 199; Palmyra v. Morton, 25 Mo. 593; Railroad v. Calderwood, 89 Ala. 247; Mitchell v. Railroad, 51 Mich. 236; Horr and Bemis Municipal Pol. Ord., sec. 184. (7) The ordinance prohibiting the city auditor from delivering warrants to assignees became a part of the contract of employment between Dock Wilson and Kansas City, and such contract is binding and valid. Delaware Co. v. Safe Co., 133 U.S. 473; Smelting Co. v. Starling, 127 U.S. 367; Burck v. Taylor, 152 U.S. 633; Omaha v. Oil Co., 55 Neb. 337.

Henry L. Jost for respondent.

(1) The trial court found that Wilson had entirely earned his wages at the time he sold and assigned his claim therefor to the relator. The appellate court will defer to and adopt this finding. Roberts v. Herryford, 54 Mo.App. 365; Hartley v. Hartley, 143 Mo. 216; Shanklin v. McCracken, 151 Mo. 587; Brugge v. Bedford, 89 Mo.App. 553. (2) The work having been already performed, and the wages already earned, Wilson's right to sell and assign his claim therefor to the relator, is a fundamental and common right under the laws of this State. Birkbeck v. Stafford, 23 How. Pr. (N. Y.) 236; Thompson v. Cullers (Tex. Ct. of Civil App. 1896), 35 S.W. 412; Greenhood on Public Policy, pp. 351-353; Missouri Bill of Rights, sec. 4; Ciples v. Blair, Rice Chancery (S. Car.) 60-66; Schwenk v. Wycoff (N. J.), 9 L. R. A. 126; Beal v. McVicker, 8 Mo.App. 203; State v. Williamson, 118 Mo. 146; Johnson County v. Bryson, 27 Mo.App. 341; Page v. Gardner, 20 Mo. 511. (3) The ordinance pleaded by the city auditor, in so far as it operates to restrain the free assignment of wages already earned when assigned, is invalid and void and of no binding obligation whatever, and does not excuse the auditor from delivering the warrant in controversy to the relator. Wood v. Kansas City, 162 Mo. 304; Mining Co. v. Elwood, 114 Ind. 336; Bills v. Goshen, 117 Ind. 225; 1 Dillon on Municipal Corp. (4 Ed.), sec. 947; Kansas City Charter and Rev. Ord. (Ed. of 1898), page 20 and authorities there cited; Kansas City Charter, art. 3, sec. 1, subdivision 2; Kansas City Charter, art. 2, sec. 10; Kansas City Charter, art. 3, sec. 2; Kansas City Charter, art. 4, sec. 30; 21 Am. and Eng. Ency. of Law (2 Ed.), 948, 949, 950; St. Louis v. Tel. Co., 96 Mo. 628; R. S. 1899, sec. 895; Page v. Gardner, 20 Mo. 508; Kansas City v. Hallet, 59 Mo.App. 160; 1 Dillon on Mun. Corp. (4 Ed.), secs. 329, 330, 332; St. Louis v. Russell, 116 Mo. 257; Hannibal v. Tel. Co., 31 Mo.App. 33; Shreveport v. Levy, 26 La. Ann. 671; Barling v. West, 29 Wis. 315; Tiedeman on Limitations of Police Power, page 4; State v. Addington, 12 Mo.App. 219; Deems v. Baltimore, 80 Md. 174; 1 Dillon on Mun. Corp. (4 Ed.), sec. 325; City of St. Charles v. Nolle, 52 Mo. 122; Anderson v. Wellington, 40 Kan. 173-177; Buffalo v. Baking Co., 35 A.D. 432; Milliken v. Weatherford, 54 Texas 388; Carr v. St. Louis, 9 Mo. 190; Paris v. Graham, 33 Mo. 94; Norton v. Shelby, 118 U.S. 425-442.

OPINION

ELLISON, J.

The relator is the assignee of an account of $ 8.75 for labor in the stables of the waterworks department of Kansas City, Missouri performed by one Dock Wilson. The defendant is the auditor of Kansas City and refused to give to relator, as such assignee, a city warrant for said sum. The relator thereupon instituted this proceeding by mandamus to compel the delivery of the warrant. The trial court granted the writ and the city appealed. The refusal of the city auditor is based upon the following ordinance of the city, claimed to prohibit an assignment of wages or salaries, to-wit:

"Section 1. No person shall combine his claim against Kansas City for salary or for any other demand, with that of another or others, thereby procuring one warrant for both or all of said claims instead of two or more warrants, and no warrant shall be issued by the city auditor or countersigned by the comptroller or paid by the city treasurer, to any person other than the one who has actually done the work, performed the services, supplied the material, furnished the supplies, or has complied with a contract out of which his claim arose.

"Section 2. The city auditor shall allow no person to receipt the auditor's books for warrants issued other than the person actually doing the work, performing the services, supplying the materials, or who has complied with the terms of a contract existing between him and Kansas City; provided, however, that in the event of non-residents desiring to receipt for warrants on said auditor's book, they may do so by resident agent or attorney duly authorized in writing; provided, further, that where such non-resident has no resident agent the city comptroller shall forward to him his warrant.

"Section 3. Any person failing, neglecting or refusing to comply with any of the provisions or requirements of this ordinance shall be fined by the police judge not less than five dollars nor more than five hundred dollars and any officer or employee of the city, who shall sell or assign his unearned salary, unearned wages or earnings, shall thereby be deemed to have committed an act which is hereby declared to be sufficient cause for his removal."

The ordinance is not well drawn. The first section prohibits the issuing or payment of a warrant to any other person than the one who performed the service for which payment is asked. The second section prohibits any other person than the one performing the service from receipting for a warrant. And finally, the third section makes it unlawful for any officer or employee to sell or assign his unearned salary or wages. It would have been better if the first section had, in terms, forbid or made unlawful, an assignment of a claim, earned or unearned, as the city counsel might believe the city's interest to demand. But the relator puts its right to the warrant on the ground that the wages were wholly earned when assigned to it, and attacks the ordinance on the theory that in so far as it seeks to prevent the assignment of wages which were wholly earned at time of assignment, it is void.

The defendant seems to seek to uphold the ordinance as a valid preventive of the assignment, whether the wages be earned or unearned, though he contends they were not wholly earned in this case. Relator's position discloses that if the city had the power to declare illegal an assignment of wages wholly earned, no contention would be made over the right to prevent an assignment of wages which were unearned. So, therefore, the important consideration is as to the power of the city, by ordinance, to make illegal the assignment of wages which have been earned.

1. There can be no doubt that any valid provision of an ordinance in relation to the employment of city employees enters into the contract of employment as effectually as if written in the contract. This is so held in all instances where the law is one enacted by the Legislature or the Congress; whether the law be local or general. State ex rel. Goodnow v. Police Commissioners, 71 S.W. 221. In that case it was said "that the defendants hold their offices by virtue of the Act of 1874, and amendments thereto, and not by force of the city charter, and that the same is true of the relator. It also follows that when relator was appointed a member of the police force by virtue of the act, he accepted that appointment subject to all the terms and provisions of that act as fully as if those terms had been specified in his commission." And it is so held as applicable to the valid enactment of a municipal council. St. Charles v. Hackman, 133 Mo. 634, 642, 34 S.W. 878.

2. It therefore comes to this question: Is it a valid contractual provision to insert in a contract with a municipality that a claim for the wages arising...