192 Mo. 690 | Mo. | 1906
The original petition in this case was a suit in equity to prevent the defendant Koenig from collecting and paying into the treasury of the city of St. Louis fees allowed by statute to the probate judge for the transaction of probate business in the city of St. Louis, and to prevent the city of St. Louis from receiving such moneys, on the ground that the Act of March 20,1897, providing that the judge of said probate court of the city of St. Louis should thereafter receive a salary instead of the fees allowed by the statute, was unconstitutional and void. To that bill a demurrer was interposed in the circuit court of St. Louis which was sustained by the circuit court, and the plaintiff refusing to plead further final judgment was rendered in behalf of the defendants, Koenig and the city of St. Louis, and thereupon an appeal was taken to this court by the plaintiff, and the judgment of the lower court was reversed and the cause remanded with instructions to proceed in accordance with the opinion of this court. The opinion in that case was reported in 168 Mo. 356.
After the cause was remanded to the circuit court, the plaintiff filed an amended petition, by which the action was changed to one at law for money had and received by the city for the sum of $42,449.68 with in
The reply filed by plaintiff consists, first, of a general denial, and then of a plea, in which it is alleged by
At the trial of the cause it was admitted that the plaintiff was elected judge of the probate court of the city of St. Louis at the November election in 1898, and afterwards qualified and performed the duties of his position from January 1, 1899, for the four years next following. It was also admitted that up to April 28, 1902, the sum of $91,533.33 of public fees earned by the probate court and judge of St. Louis after January 1, 1899, were paid into the city treasury by the defendant Koenig, acting as clerk of the probate court at the dates and in the amounts shown in exhibit “A” attached to the city’s answer. It was also admitted that on_ May 19, 1902, the plaintiff was paid by the city the sum of $49,013.65 and that said payment took place under a stipulation signed.by the parties by which it was agreed that the city of St. Louis was indebted to the plaintiff in the said sum of $49,013.65, the sum being the differ
On the part of the defendant, Koenig testified that he was a candidate for clerk of the probate court under the Act of March 20, 1897, at the general election in November, 1898, and-was elected and qualified and held the office on the theory that the statute was valid; that
John W. Gutting testified that he had been a deputy clerk in the probate clerk office since 1868; that his duty was to write up the records of the court; that when Judge Henderson first assumed the duties of judge of said court no changes were made in the cler
An itemized statement of the disbursements made by the city of St. Louis for clerical hire in the office of the probate court, marked exhibit “A” and filed by the city with its answer, was admitted to be correct, and also an itemized statement of the fees collected by C. William Koenig and turned over to the city of St. Louis, was admitted to be correct, the total aggregating $91,-513.33, and the total disbursements amounted to $42,-499.68.
In rebuttal Judge Henderson testified in Ms own behalf that at no time during Ms incumbency of the office of .probate judge did he consent to the payment of the fees of probate judge into the city treasury. That as early as January 24, 1899, he commenced a suit against Koenig and the city of St. Louis to enjoin them from collecting his fees. This was before any money was paid into the city or paid out by the city. In regard to the service of clerks and deputies and their continuance in office, he testified that “they wrote up the records and I signed them, but as far as consenting or
This was substantially all the evidence necessary to the understanding of the propositions of law discussed by counsel and which are before us for decision at this time.
I. This is an action of assumpsit for the money had and received by the city to the use of the plaintiff. It is clear that, in the first instance, the defendant city did not make any express contract of agreement with the plaintiff to collect and hold these fees and account to him for the same, but the liability of the city is bottomed upon the implied promise of the city to pay him the moneys which in equity and good conscience it has received for his use. This action will lie in general whenever the defendant has received money which in equity and good conscience he ought.to pay over to the plaintiff. [Cary v. Curtis, 3 How. (U. S.) 246; Winningham v. Fancher, 52 Mo. App. 458; 2 Ency. Pl. and Pr., 1016, 1017.] This action of assumpsit, while maintainable at law, is of an equitable character, liberal in form, and greatly favored by the courts as a remedy.
The act of 1897 (section 1764, Revised Statutes 1899), having been adjudged unconstitutional by this court, it is clear that the plaintiff was entitled, instead of the salary prescribed by the Act of 1897, to the fees earned by himself and his deputies in the administration of his office as probate judge of the city of St. Louis. Up to this point there is no controversy, and the city, recognizing the attitude in which it had been placed by the Act of 1897 and the subsequent decision of this court, immediately upon the remanding of the cause tendered to and paid over to the plaintiff $49,013.65 of the fees so paid to it by Koenig as clerk under the Act of 1897, but retained $42,499.68, amount in dispute in this action, on the ground that in equity and good conscience it had paid out this amount to the various deputies of the plaintiff to the use and for the benefit of the
"We are cited by the learned counsel for the plaintiff to the numerous decisions of the highest courts to the effect that a statute void for unconstitutionality is as if it had never been, and that rights cannot be built up under it, and that it is no protection to anyone who is acting under it. [Cooley on Constitutional Limitations (7 Ed.), p. 259, and cases cited.]
That this is the logical deduction from the holding of an act of the Legislature unconstitutional must be conceded and so it has been held by this court, particularly when the citizen has invoked the unconstitutionality of an act to protect himself against a criminal charge and punishment thereunder. [Ex parte Smith, 135 Mo. 223; In re Flukes, 157 Mo. 125; Ex parte Neet, 157 Mo. 527; Ex parte Lucas, 160 Mo. 249, et seq.]
But conceding that the Act of 1897 must be held as so utterly void that it was as if it had never been passed, what then was the relation of the plaintiff and Koenig, the clerk and all the other deputies in the office of the probate court when plaintiff was inducted into office on January 1,1899?
The act providing for the election of the clerk as a séparate officer was as unconstitutional and void as
So numerous and important were the duties of the office that it was clearly a physical impossibility that he, unaided, could do clerical and office work, and make a record of his judicial acts. In this situation he was confronted with the obligation which the law, as well as common fairness and honesty, devolves upon every man who permits another to render valuable services to him by his consent and which he accepts. Holding as he did that the Act of 1897 was unconstitutional, and as this court at his instance so held, there was but one alternative left and that was that if he without advising them to the contrary accepted their services and they with his knowledge and approval continued to render him these services, the law implied an agreement on his part to compensate them for the reasonable value thereof and proof that the services were thus rendered
Claiming the benefits of their services and without which he could not have administered his office for a week, he could not and cannot be heard in a court of justice to ignore the corresponding obligation to remunerate the clerks and deputies who performed them and thus enable him to make his claim therefor. Under these conditions what did the plaintiff do? He brought his suit to have the Act of 1897 adjudged unconstitutional, but says himself that he did not notify a single clerk, deputy or assistant that he had no right to act as such, nor did he make a single effort to oust them from their places; on the contrary, he treated them one and all just as if they had been appointed by himself, ratified all their acts as clerks, and when a change or vacancy occurred and a new appointment was necessary he affirmatively approved the same by a formal order on his records, notably in the ease of August Carle, Henry F. Bohn, J. B. DeGarno and Matthew Tenman. No less significant was his conduct in regard to the other clerks and deputies. Day by day he publicly recognized Koenig as the lawful clerk of the court by passing to him the various papers with Ms indorsement thereon to make the minutes of the files in ink and pass them to the entry clerk, Gutting, who kept the full record, and when Gutting had spread his orders at large on the record, he signed the same as judge, thus in the most solemn manner approving and adopting the acts of these deputies whose work is the source of all these fees for which he now sues and who according to the position he assumes in this case could not have lawfully done a single one of those acts other than by his own appointment. And when the Act of 1897 was declared unconstitutional by this court he contmued all these clerks, deputies and as
This court, in Merrill v. St. Louis, 83 Mo. l. c. 251, quoted Judge Cooley’s text and approved it on the ground that the parties plaintiff and defendant were alone interested and such is the case before us as it now stands. The plaintiff and the city of St. Louis alone are interested in this issue which involves alone the property right of plaintiff to recover the amount of the fees paid, out by the city to these clerks and deputies. A waiver occurs, when “one in possession of any right, whether conferred by law or by contract, and with full information of the material facts, does or forbears the doing of some things inconsistent with the existence of the right or of his intention to rely upon it; thereupon he is said to have waived it, and he is precluded from claiming anything by reason of it afterwards.” [Williams v. Railroad, 153 Mo. 487, l. c. 519; Bishop, Contracts (1887), sec. 792.]
As said by the St. Louis Court of Appeals in Stiepel v. Life Ass’n, 55 Mo. App. l. c. 233, “waiver depends solely upon the intention of the party against whom it is invoked, and is in that respect different from estoppel.” The Kansas City Court of Appeals, in Mich.
We have no hesitancy in holding that if this were an action by the clerk and his deputies for the reasonable value of their services, rendered in the circumstances of this case, they could recover of plaintiff the value of their services notwithstanding the Act of 1897 was void and they thought it was valid when rendering the services.
But, says the plaintiff, granting all this, this counterclaim is not asserted by the clerks, but by the city, and no one can be made the debtor of another without his order or consent. This, too, is a correct statement of the law in a proper case. But in its application to the facts of this ease, can it be said the payment by the city to the clerks with the knowledge of the plaintiff was without his consent? We have already adverted to the fact that the testimony discloses that the clerk understood from plaintiff that it was not his intention to challenge the act which provided for the compensation of the clerks. The evidence of the plaintiff in our opinion confirms the testimony of Koenig and Gutting as to his recognition of the right of the clerks to perform the services for which he claims the fees and his acquiescence therein. He says: ‘ ‘ They wrote up the records and I signed them, but as far as consenting or recognizing their rights to usurp the offices that belonged to
In the language of this court in St. Louis v. Davidson, 102 Mo. l. c. 154, he cannot ‘ ‘ grasp the benefits of their labor with one eager hand while thrusting aside its burdens with the other.” Nor can he maintain that these payments, so far as the remuneration of the clerks was concerned, were without his knowledge or consent. The law and justice alike required something more than a mere passive policy. Recognizing as he did the legality of the services rendered by these clerks and deputies, and holding them out to the public as rightful officers though holding under an unconstitutional act, he
Keeping constantly in view that the very foundation of plaintiff’s claim to these fees is that he is entitled to them aequo et bono, we are prepared to say that in equity and good conscience he must be required to do equity and allow the salaries which the city paid out for the performance of the services upon which alone his claim for fees rests. There is nothing tortious in the conduct of the city or the clerks; they, at most, simply made the mistake of thinking it was their duty to obey a statute passed with all the formalities of the Constitution. They seem to have rendered these services to the entire satisfaction of plaintiff, as he has approved them and demands the fees therefor. It is not pretended that he has in any manner rewarded them out of his own pocket. While this court holds and the city confesses he is entitled to his fees, equity and good conscience and the law requires that in this accounting the reasonable expense of earning them shall be deducted. The conduct of the clerk and city seems to have been prompted by entire good faith. They have scrupulously accounted for every dollar that came to their hands. They did not obtrude themselves into plaintiff’s affairs without a color of right, and it would be a harsh conclusion to say that the city must lose $42,000 from which it has derived no benefit and which it in obedience to a public statute paid out to the clerks and assistants who earned these fees in the utmost good faith. The decision of the Supreme Court of Illinois in Mayfield v. Moore, 53 Ill. 428, 433, commends itself to us. The court said: “The appellee (contestee) has intruded into
The right of an officer de jure, who has been deprived of his office by a de facto incumbent, to sue the latter for the salary or fees he has received as such, is now settled law in this State. If the compensation fixed by law is a salary the authorities seem to hold that the officer de jure is entitled to recover the whole without abatement, but where the officer’s remuneration consists of fees earned for services rendered the public or individuals it'is held that the measure of damages is the amount of the fees less the necessary expense in earning them where he has held the office under a color of right. [Mayfield v. Moore, 53 Ill. 428; Bier v. Gorrell, 30 W. Va. 95; 2 Sedgwick on Damages, sec. 569.] But where he has intruded without pretense of legal right, then a different rule will apply. If an officer de facto can recover or be allowed the necessary expenses of earning fees during his incumbency in derogation of the rightful officer, a fortiori, it appears to us, can the
We think the circuit court correctly ruled that while he was entitled to the fees, he was chargeable with the necessary salaries p-aid out by the city to his clerks and assistants, who earned them for him, and the judgment of the circuit court is accordingly affirmed.