Wessler v. City of St. Louis

• Decision Date: 11 September 1951
• Docket Number: No. 28195,28195
• Citation: Wessler v. City of St. Louis, 242 S.W.2d 289 (Mo. App. 1951)
• Parties: WESSLER et al. v. CITY OF ST. LOUIS.
• Court: Missouri Court of Appeals

Page 289

242 S.W.2d 289

WESSLER et al. v.CITY OF ST. LOUIS.

No. 28195.

St. Louis Court of Appeals, Missouri.

Sept. 11, 1951.

James E. Crowe, City Counselor, and John P. McCammon, Associate City Counselor, St. Louis, for appellant.

Norman Bierman, and Anderson, Gilbert, Wolfort, Allen & Bierman, St. Louis, for respondents.

BENNICK, Judge.

This is an action by some twenty-three of a much larger number of civil service employees of defendant, City of St. Louis, who had been variously laid off from their respective positions in the city service.

Upon appeal to the Civil Service Commission, a decision was rendered that such layoffs were invalid because not made in accordance with the provisions of the civil service amendment to the charter and the rules of the commission adopted pursuant thereto, and that the employees were entitled to be paid compensation by the city for the periods of their illegal separation from their positions.

The city thereupon sued out a writ of certiorari in the circuit court to review the action of the commission, and upon a hearing the commission's action was affirmed.The city then appealed to the Supreme Court, wherein the judgment of the circuit court was affirmed.City of St. Louis v. Smith, 360 Mo. 406, 228 S.W.2d 780.

Thereafter the city undertook to carry out the order of the commission as affirmed in the certiorari proceeding, but in paying each of the employees his back pay for the time during which he had been separated from his position, insisted upon the right to deduct therefrom the amount which such employee had earned in outside employment during the period of his particular layoff.

The twenty-three employees in question contended that the city had no right to make such deductions, and joined in bringing this action against the city to recover the amounts of their respective deductions with interest.

The facts being admitted, the only question for decision was purely one of law, which plaintiffs tendered by motion for judgment on the pleadings in which they denied the sufficiency of the city's answer to state a defense to the claims that were asserted.The court sustained the motion, and entered judgment for the plaintiffs, and against the city, for the aggregate amount of $4,800.36.From the judgment so rendered, the city has taken its appeal to this court.

The city is sued in its corporate or municipal capacity, and not as a political subdivision of the state; there is no constitutional question involved; and the aggregate amount in dispute is less than $7,500.This court's appellate jurisdiction is therefore properly invoked.Const. of 1945, art. V, secs. 3,13.

In the case of the breach of a contract of employment, the basis of the right to reduce the claim of the wrongfully discharged employee by deducting from his compensation whatever amounts he may have earned in other employment during the period of his discharge is to be found in the principle of avoidable consequences in its relation to damages for breach of contract.In other words, upon the breach of a contract of employment, the employee is under compulsion to use reasonable diligence to obtain other gainful employment for the purpose of minimizing the resulting damages; and the employer, even though at fault in breaching the contract, is none the less entitled, in settlement with the employee, to be credited with whatever the employee earned or might have earned in other employment over the period of the breach.56 C.J.S., Master and Servant, Sec. 59.In the case of private employments the rule is of quite general application; and the only difficulty arises in a situation such as we have in the case at bar where it is sought to extend the rule to public servants who have been illegally excluded from their positions.Corfman v. McDevitt, 111 Colo. 437, 142 P.2d 383, 150 A.L.R. 100.

For the purposes of our discussion public servants are to be divided into two categories--public officers and public employees, between whom the distinction is sometimes elusive and difficult to comprehend.

There is no question but that a public officer who is wrongfully excluded from his office is entitled, absent his abandonment of his office, to recover his full salary without deduction of any amounts he may have earned in other employment during the period of his exclusion.This upon the theory that the salary or compensation fixed by law for the particular office is an inseparable incident of the office itself, and belongs to the officer, during his term and until legally removed, by virtue of his right and title to the office, and not by reason of any contractual relationship with the governmental authority.State ex rel. Chapman v. Walbridge, 153 Mo. 194, 54 S.W. 447;Gracey v. City of St. Louis, 213 Mo. 384, 111 S.W. 1159;State ex rel. Nicolai v. Nolte, 352 Mo. 1069, 180 S.W.2d 740;67 C.J.S., Officers, Sec. 83;43 Am.Jur., Public Officers, sec. 342.Once understood that the officer's right to his salary comes to him by law and not by contract, there is no basis for the application of the rule of avoidable consequences; and it inevitably follows that his earnings from other employment while wrongfully excluded from his office cannot be set up in reduction of the salary due him for the period covered by his exclusion.State ex rel. Langford v. Kansas City, Mo.Sup., 261 S.W. 115;67 C.J.S., Officers, Sec. 99d;43 Am.Jur., Public Officers, sec. 382;150 A.L.R. 103.

But by the same token the rule of avoidable consequences does apply to the case of a public employee who is unlawfully deprived of a position he holds under a contract of employment for a determinate period.This presupposes, of course, that he is in truth a public employee, and not in effect a quasi-public officer by reason of the characteristics of his position, which may give...