*1 State of Missouri at the relation Appellant, C. Rothrum, John A. L. et Darby, Director Finance al. 137 S. (2d)W. 532. One,
Division March 1940. *3 Haley Frederick E. Whitten H. and John for relator. *4 Jr., respondents. Marcy Brown, O. E. Sam Blair *6 sought Appellant in mandamus. HYDE, proceeding is a C. This amounts necessary pay him compel respondents to take action the Fire salary as a motor driver to be him for his claimed due City. The Kansas Fighting Department of Division of the Fire judgment The court entered total amount claimed was $1025. quashed, denied, alternative writ be peremptory writ that the be is from appeal This appellant’s petition and that dismissed. be judgment jurisdiction of constitutional and we have because questions parties. raised both fireman July 9, 1912, 8, 1937, appellant
From and until June 1930, Department. of the Fire In he was a motor driver Kansas salary, Fighting as fixed Division of and his annual Fire ordinance, 1926, 30, 52820, adopted April 14, September No. amended 1929, bi-monthly per month, paid $1920 $160 payments. This later ordinance ordinance was amended an adopted May April 17, 1933, 1, 1933, salaries effective which reduced $1680, of such motor Pursuant to a per drivers to month. $140 plan City Manager, ap- certain amounts were deducted from pellant’s salary year during several months of 1930 and of each thereafter. compel payment Plaintiff’s suit is to of such of these five-year amounts limitations, as are not barred statute of “November, 1932, which were as $20.00; follows: December 31, 1932, inclusive, January 1, December $40.00; the sum of January 15, 1933, January 16, $20.00; inclusive 1933 to January 31, 1933, $40.00; February 1933, $80.00; March $80.00; April 1933, $80.00; September 1933, $35.00; October $35.00; 1933, $35.00; January November $35.00; December 1934, $35.00; February 1934, $35.00; 1934, $35.00; April March 1934, $70.00; 1934, $35.00; November 1934, $35.00; January December February $35.00; 1935, $35.00; 1935, $35.00; March April 1935, $35.00; January 1936, $35.00; February 1936, $35.00; March 1936, $35.00; April 1936, $35.00.”
Appellant’s contention is that these unlawfully deductions were any legal right made without to do so and that these amounts are due city. him from the making basis claimed for these deductions wаs that appellant, appointive all other officers and city, during made, months in which signed were printed application following blank in the form: hereby
“I apply my for leave of position. absence from period for ., 193...., ., from 193...., 1939]
inclusive, hereby agree I if application granted, such leave of pay, compensa- shall amount absence be without and the tion period which would to me such otherwise accrue shall City, Missouri; agreed remitted in full to Kansas and it is further *7 that if application granted, by is in service rendered me whole or part during any portion in period all or said be shall wholly voluntary gratuitous and and compensation paid no shall be me therefor.
“Dated., 193. . application hereby “The above accepted and leave absence granted period for stated, pay. without “Dated.,193. The acceptanсe of these applications duly were on each occasion
signed by department the and head deductions were in next the made pay roll days for the days stated therein. The number of to be during inserted and the months applications which these should made were MeElroy, Manager. determined H. F. the He year city May testified that “the fiscal year;” of the starts 1 of each property that (which go general taxes into the revenue the fund city) penalties are due and for non-payment June November start 1; general that the throughout fund also' income the revenue receives year taxes, designated licenses, gasoline liquor taxes, from and other sources; depart requirements that estimates of of all of various cost year February; ments for next are him in that fiscal made to city in budget made him to the council recommendations аre he the financial April; March and that November 1 knew and year city, revenue that and the of the “what condition operation of the expenses have taken care of in that to be ’’ city general city. levy property He stated the tax further thirty purposes “up to the limit and has been for constitutional November) city’s years;” (before “in 1930 condi that financial city required keep tion to be taken to within action its financial budget year;” for that and that “we discussed the matter with mayor directors, way and the different and we concluded the better voluntary vacation, to do would be ask the take voluntary payrolls, voluntary which meant a in cut or in reduction payroll, way, the amount that meet the He situation.” put further testified “this was into force effect in November 1930;” year, thought of that that the Counselor “this could be course, legally providing, done thе people would take the vacation accept pay or practically the cut which amounted voluntary;” ‘1 ’’ purpose of it was to reduce operating the cost of city; succeeding years” that this has been “plan followed up and that the alternatives were “eithér have to make a cut in pay, or discharge dispense cut off men some with some valuable services people, people,” to the tax (or) increase the burden on levy. raising the tax required would have method other than some further, He testified follows:
“Q. including Rothrum, accepted men, Now had all of these Mr. you go- agreement, gone vacation, the terms of this what were ing it, open? A. department keep to do with the fire to maintain it Well, necessary occurred, it to consider never never was yourself Q. that. Then it intention of and the coun- was not the cil that these men out in these ever take a leave of absence as set exactly slips? Well, slips just A. I don't know whether those were they say they what are.”
It appellant, was shown other evidence that and other mem- bers of Department, Fire were never notified that leave of purported applied for, absence plan, to have been under this granted, during it months, and was admitted that in which made, deductions absence, appel- were on the basis of such leaves of *8 faithfully lant “continuously, interruption, fully without and dis- charged all fighting the duties of a motor driver in the fire division of the Department city.” Fire of It that, ap- said was also if shown pellant, fireman, actually or other during did desire to be absent specified City Manager’s in times applica- leave of absence tions, any part thereof, necessary or it was for him to make another application and different Captain company, just to the of his same as on other Captain, agreed, get occasion. The if he approval of Chief, the district approve who could a leave of not days. more than application three If such an granted, was the fireman required was ready to have a place, substitute to take his pay and the of this substitute was likewise deducted from pay the fireman’s in payroll. the next
It is that, Manager obvious as the admitted, the leave agreements of absence say they were not “what are.” It is apparent agreement, no such as (leave stated therein of ab pay) sence without was ever made or by intended to be made either party Clearly arrangement thereto. the actual intended was work pay, without not pay. is, vacation without It therefore, unnecessary pass upon legality to agreement or effect an of for a leave of pay absence without as none ever made. question validity
The real is of an agreement, for deductions from by pay (without any by fixed ordinance change ordinance), made between (the Manager executive officers department direc- tors) appointed city and the other officers or employees; considering agreement such an either implied to be from the terms of the leave of agreements absence acceptance or from of as shown payrolls or as an oral Appellant contract. contends that such an agreement void; to -withhold and refuse pay part of salary by his fixed ordinance was unlawful arbitrary; and that law, process of due property without thereby deprived of his he was Missouri II of the Constitution 30, Article iu violation of Section of the United to the Constitution Fourteenth Amendment and the States. void, grounds of agreement is an majority rule is that such R. A. L. note; 118 R. 975 A. L. public policy. cases see [For W. 178 S. Louis, 265 Mo. St. also note; see Orthwein 1173; 19 702, sec. 43 C. J. 275; sec. cited; 46 and cases C. J. McQuillin, 234-239; 2 537-541, L. secs. 22 R. 220; R. L. sec. C. C. Officers, secs. Public 542; Throop’s Corporations 330, sec. Municipal showing the Officers, Cases sec. 52 and Mechem on Public rely also be found respondents’ will minority view, upon which theory ruled on the these cases were these A. L. R. notes. Most of discussed; but, in “estoppel” hereinafter of either “donation” or having to do by power changed .some, compensation authorities recently a stated grounds policy involved were public so. Some appellate follows: court, Texas salary fixing Legislature, in presumed
“It is to be that the state, did public offices paid to thоse who filled the various regard and- the nature the service the character (cid:127)so with due type office, of officer the individual to fill the needed salary public If a candidate for be obtained for the offered. could- permitted appointment promise election is to obtain or (cid:127)office Legislature, if, for less than amount fixed or serve after having election, permitted he se- appointment obtained to more bring curely promise entrench thus such office himself ultimately reappointment re-election, practice about his such will auctioning positions in the off of result virtual official to the lowest 'bidder, obtaining po- and the of the least efficient fill *9 capable earning salary by the the statute, sitions. Those of fixed and by type contemplated Legislature, by (cid:127)of the the be will eliminated competitive bidding, such so nоne but the inefficient will be morality fill the public available for selection to offices. Official and policy prohibit undermining public by alike per- the service mitting to thus their malte merchandise services. officers of official by promises public officials have contrary Such been condemned-as to only by Supreme not public policy, the of State, by Court but courts, of Appeals the federal and the Courts of every almost other (Our italics.) in state the Union.” County v. Johnson [Crutcher (2d)W. (Tex.), 79 S. 932.] ground is, An public office, even more vital compen and therefor, must not sation not and a matter become of contract. Officers, secs. 463 Public and Public offices and [Mechem belong people to and positions upon the not to they officers whom appointive R. power. 377-379, C. L. confer secs. [22 9-11.] tenure, compensation (cid:127)qualifications, and thereof must be determined
by government. will their people people the or the lose control of by have representatives people This must done authorized be these them, people for have determined act unless the themselves by not writing' people them If the have matters into the Constitution. them, and thus then under our Constitution themselves determined theory government, powers. legislative of these are Ex [Merchants’ Exchange Knott, 111 S. W. chants’ of St. Louis Throop’s Officers, Public secs. It is funda 443-444.] govern mental, government, powers under our form of that “the of departments ment . . shall divided into three distinct . each be separate person, of magistracy;” which shall be to a that “no confided persons, charged or collection of of powers properly with exercise belonging of departments, power to one those shall exercise properly belonging others;” either of the so that will have we government government III, of of and not a men. laws Const. [Art. government of government laws, A of laws means in which Mo.] legislative binding branch, equally authorized to made are upon judicial completely all officers of the as executive and branches they upon Otherwise, all other citizens. are ultimate result government men; men, be a temporarily of rule who obtain authority office, whim, caprice whatever notion or at time surely bring occurred to collapse them. This would about government by free people. taught by institutions and end As way an proverb, keep ancient Arab the sure the camel out of prevent the tent putting doorway. is to him from his nose in the Complexities government problems devised to meet arising new from civilization, modern affording public urban industrial greater officers оpportunities power, for abuse of make the enforce ment principles necessary of these fundamental more then ever. Cond great itions and events in other nations point warning to a plain so may that he who runs opportunities read. The public officials to office, entrench themselves means inconsistent public with welfare, upon by in the manner court, commented the Texas by oppressing laying upon likewise tribute their appointees, beyond imagination scope, would be limitless if courts upheld the theory dealing contract with subordinates whom are authorized appoint. against Our purchase criminal statutes sale or of office (Secs. 3931, 3936, 3939, 3940, and Sec. R. 1929, 4 S. Mo. 2757, 2759-60) Ann. are Stat. a clear declaration of public policy against theory. of this State Obviously, contract use such keep against is as methods office much the public interest as is get their use to in office. *10 Kenney Remmers,
In v. 126, State ex rel. 340 Mo. 101 S. W. (2d) 70, patrolman discharged a the St. Louis Police Board employed he counsel “to restrain because them from asking him to give per salary unemployment ten cent of his toward relief.” This
1013 right denying regulation court held that Board a of the Police green by the board patrolman permission counsel to a was first unless although that, beyond power. was void because the board’s We said Legislature authority necessary, rules given had to make the board arbitrary regulations, and such a rule was so unreasonable and legislative irrespective be power, “transcendent of due bounds of provisions Therefore, held that constitutional state or national.” we regulation, patrolman, dismissal of the of this violation right of Certainly support void. our fundamental laws do not appointed' ap- one compensation executive to fix of all other officer pointive by agreements disregard officers them of the action with body exercising legislative of the power. If he fix them lower could by agreement, why higher! fix could he not also thus them We rule that this attempt City Manager compensation fix the of all appointive City arbitrary officers and an exercise of power, transcendent of power due bounds of executive void. authority
Nor is such given, purported given, executive officer City. charter of Kansas Under Constitu State, tion of this Legislature, general in the of its legis exercise may lative power, grant municipalities authority to exercise powers properly belonging legislative department to the of the State. [Slud er v. St. Co., Louis Transit 107, 648; 189 Mo. 88 S. W. ex State rel. North & South Meier, v. 439, 306, Railroad Co. 143 Mo. 45 S. W. overruled on grounds other Albright Fisher, 56, v. 164 64 Mo. S. W. 106; Cape Moore Girardeau, v. 103 Mo. 755; S. W. State ex rel. Gates, Abel v. 881; Stegmann Mo. 89 S. W. Weeke, v. 279 Mo. City S. W. Threshing Kansas I. J. Case Ma Co., chine (2d) 87 S. W. Section 7 of Article IX of our Legislature Constitution directs to “provide, general ’’ laws, for organization and classification of cities towns. The Constitution, by IX, directly Section 16 of grants legislative Article powers by authority “any city having population of more than one hundred may thousand inhabitants adopt frame and charter for its government, own consistent subject with and to the Constitution and laws the State.” The italicized clause means that inconsistent charter provisions ordinances, concerning the exercise governmental of- functions, City are void. Kansas v. J. I. Case [See Threshing Co., Machine Exercising authority, this supra.] Kansas adopted a new charter in 1925. Section of Article of this Charter states that “the powers city, except as otherwise provided in charter, shall be vested in a council.” There is no exception legislative as to powers powers and such thereby were vested in pursuant council to and consistent with the plan constitutional of government. authority duties of the Manager, de scribed as “the chief administrative city” officer of the are set out III, in Article They Sections 20-24 27-28. legislative include no
1014 24-27, directors, Secs. see department of powers. (Tbe 'same is true "tbe sal- provides that 20, III.) Moreover, 470, Art. Article Section city shall be employees of tbe ary compensation of officers and this, in provided expressly by except fixed ordinances otherwise charter, by tbe is fixed -(Compensation of officers charter.” elective 5, pro- 122, Article II.) Likewise, 11, see 6 and Art. Section Secs. schedule a by establish vides that "tbe council shall ordinances service, which in compensation the classified for officers and (The classi- provide compensation for like service.” shall uniform as unclassi- listed not appellant positions fied and all service included etc.) Pursuant fied, officers, departments, limited to elective heads of of all officers compensation fix to these the council did directions unskilled hourly for common employees, daily rates even to Public Department, and Water Department, laborers Park 19, Secs. Art. Department. Works No. 130-148.] [Ordinance fixed, it was city salaries If not the income of any is the charter duty Nowhere in council to revise them. council City Manager; we hold that the authority given the such act, by failure powers him either mere upon not confer such could by attempting to functions, or even complete abdication of these S. W. delegate 280 Cavanaugh Gеrk, v. 313 Mo. them. [See nécessity brought urge about Respondents and eases cited.] prevent the council from depression, depression did not but the finally thus acting fit council did to revise salaries to income. The taken change action should be salaries and the matter of when such for it to decide. against argue policy, Respondents public the rule of fireman because a theory, apply appellant should not contract only has been some employee public There is an and not a officer. R. opinion a fireman. note 36 L. difference about status of [See S.) (N. McQuillin, Municipal Corporations, 2 sec. A. also see Dooling, 140 Kentucky Appeals, in Schmitt v. Court of 437.] S.) 881, public a fireman was a 197,W. L. R. A. held that (N. S. salary assign officer, his public the rule that officer cannot within certainly due, applicable are here. before it is for reasоns that [See is City (Neb.), 264 N. W. It well Bishop also v. of Omaha 447.] that, department a operating a fire our decisions settled exercising governmental of Hanni function. is [Richardson Moreover, (2d) the Kansas bal, 50 S. W. 330 Mo. 648.] Chief, Fire of his assistants provides that "the Charter fire, charge police powers have the same at such fires as shall public ex rel. to tests of officers see State the Chief Police.” [As (2d) However, S. W. Truman, Pickett v. specific pro respondents’ contention answered rule we mentioned, place all above and others which visions of the charter day (except perhaps unskilled la- in the classified service positions borers) compen- their basis, require tbe same to fix council sation.
Likewise, ap must respondents’ we overrule contention that pellant was a public subject theory not officer, and the contract *12 of cоmpensation, term, because his not a appointment was for fixed but will,” subject “at discharged and to “be at removed or discre tion, 46, without notice.” 9, Art. Ordinance No. Un [Sec. 52820.] respondents’ der contention, City Manager public the be a would not officer, since “during pleasure he serves the of the coimcil.” [Sec. 20, 3, Art. City any Kansas Nor would of the directors of Charter.] departments, appointed by City Manager subject the to “be any removed him 21, at time.” Art. 3 of The [Sec. Charter.] answer is that tenure “at will” of an executive officer does not mean compensation according to will, especially his when the charter specifically provides otherwise.
Respondents rely upon laches, also waiver, estoppel. As contentions, these ruling we follow of the Supreme Court of States, Glavey United States, v. The 595, United 182 U. S. 21 Sup. 891, Ct. 45 L. Ed. for the therein, reasons stаted as fol lows : “ public 'If policy prohibit bargain such a in advance, it would seem that a court should be give astute not to illegal effect to such by indirection, contract spelling as estoppel.’ out a waiver or If it were otherwise, held the result be would that the of heads executive departments provide, respect could all of officeswith fixed salaries attached appointments, and which fill could that the incum- bents compensation by Congress, should not have established but the. perform positions should the service respective connected their with compensation for department, such as the head of a all under the cir- cumstances, adequate. way In deemed to fair and this sub- ject public of salaries officers would be under the of the control department government. policy executive of the Public forbids recognition power belonging such to the of an head execu- department.” tive
Moreover, an compensation if officer he is al- receives more than by statute, lowed can proper State subdivision thereof recover County Kidder, it from him. v. 344 Mo. 129 [Nodaway S. W. (2d) poor ways. is a It rule that does not work both As 857.] Hamilton, court said in ex rel. State Moss 260 W. S. legal obligation partial payment “the payment full, a is not debt;” discharge not does and failure claim the balance at
the time “county through respondents did not cause to act their ’’ change position detriment or to its to its detriment. also Whal- [See County, en v. 342 (2d) Buchanan Mo. 111 S. W. 177; State ex rel. Player, Whalen v. Mo. S. W. Here the had no 859.] discharged right obligations that it had its to assume for salaries be- city em- shown, hereinafter partial payment. it As cause bad made through Manager
ployees protested against action method expedient a more they no doubt considered committees, which there- individually. We, protesting under the than circumstances laches, on waiver fore, respondents’ overrule based contention estoppel. signed agreements, Respondents further contend that salary and part his legal appellant, a donation of “constitute Interna according city.” to Webster’s A donation services to property” Dictionary, gift, “voluntary alienation a tional give “to means “gratuitous “Donate” property.” transfer J. gratuitously C. or without consideration.” [19 to be plan said the Manager and other officers executive ’’ ‘‘ Nevertheless, entirely voluntary part employee. ’’ ‘ voluntary; practically City Manager also said that it amounted thought there if I had adopted “this not have been method would aside;” “there was them bе concerted action set *13 body city employees, or in of of part action 1933 on the a concerted city of employees, concerning an increase representing committee they been of to had their salaries or return their salaries back what it, objection to they and that there was an cut;” before were “when reducing by I to ordinance.” then resorted another method — secretary Department (respondents’ the Director of the Fire to that leave witness) department the; would be notified testified each ready to them auditor’s take slips of absence “were at the office “they brought into the up them;” and distribute that were Chief’s among and turned over to the the various office Chief distribution only that department companies;” and that “the instructions were they sign were them volun were to be distributed and members to ’’ tarily. testified,
Appellant’s Captain (also respondents’ witness) as fol- : lows signing any I objected never to that heard of.
“Rothrum these in all, my presence. never me at or We all protest He made to Oh, sign sign Q. to supposed knew we had to them. We were them. you you you sign Now, say they knew supposed to them. all had were they signed. Now, you signed? to be A. to be what made know had got, that had have a Well, that the order we that we to reduction was Q. you signing them, I in see. And were because of the salaries. way done, things from above. That is the that the had orders to be sign Q. you to them? A. Yes. And where did had those orders A. from, Captain Why, Becker? the district Chief left them come heard, around, going left All there the cards. we was to a fact, salary. Q. a, you, As matter of nor of the reduction not, your company you asked whether wanted to do it men were what was that that was just told Q. yon? A. No. Yon wеre were expected? A. Yes.” testified, witness) as respondents’ (also anditor assistant One follows: it, Q. enjoyed right. Yon A. That is salary cnt? “Q. Yonr Q. Yon yet. Well, squawked year? A. I haven’t yon, each didn’t yon? times, didn’t it lots of yon felt like squawked yet, but haven’t yon haven’t because the reason And Q. (Interrupting) A. Well— right.” yon? A. That is there, yon yonr job don’t down want testified: appellant, Department, called of the Fire The Director men, several to the first slips distributed after these were “Just . . sign them or not. . they were inquired men whether any way keep from not there was They inquire whether would wishes that it I tell them signing slips. would these only manner signed; that slips be that those administration they me as to press if they retrench, and they felt could ‘Well, go- I them, am individually, tell I would they do should what your job yours. It is you please with ing sign mine. You do ’ judgment. your own you have to use your- money, and will it is to be sent City Manager) me when these were told (The . . . job with his if he failеd to be no one was threatened around that part voluntary matter sign said it was to be them and he and he di- signed them. was to be so understood persons It who brought out. . . . information me to see that was the rected against cuts. they protested me Committees came see After that the They explained the for it. didn’t like it. I reasons signed all slips sent out and were left and the were committees department.” the various members occasions, that, as a member Appellant testified on several cuts organization, protested fireman’s he on “committees *14 the Department,” Fire and “interviewed to the Director of the Manager City City told Manager along lines;” the that “the same city facing decreased our at the time that the whole committee was money enough expenses revenues it not have and increased and would carry everybody year thе full and still on their full salaries for give public, city supposed to the the duties and that the services City Manager;” slips that had agree but didn’t the “these we with that through through the same channels come the same medium and in rela- department other come to the members of the fire calls had “I campaign assessments;” tion and that knew contributions discharged department men that from the fire for several had been comply campaign their failure to the orders had come with slips way through medium, naturally, this the came that when conclusion, I experience, I the from their that would suffer formed fireman, was a member of the the same fate.” Another who com- City Manager protested to the testified that “the mittees that take Manager that one man didn’t made a remark there one time city April, In working a cut and appellant not for now.” he was this grade to a firemаn. He said was reduced second organization.” in because of the fireman’s “activities from as as clear, respondents’ It seems from evidence well own donations, alleged testimony out, other that the of these set amount made, Man they and the fixed times should be were when contributions, campaign ager; they on the same as were basis way; and commonly “lug”, as the in the same known enforceable “or else.” that it should make them was well understood that the men wholly unnecessary It go details about the alternative. into was, “entirely voluntary” It between course, with them to choose proper may “cut” in pay place payroll. on the Whatever be the come transactions, these rule that not nomenclature of we do If levies legal “gift.” within the classification of “donation” theory, under upheld such circumstances were the “donatiоn” step might ap the next his compel well be that officer would some pointees him, appoint to “donate” to either in consideration of the 50-55, Officers, ment or to Throop’s remain office. Public secs. [See Officers, and 578-580; 370-372; Mechem on secs. 22 R. C. L. Public 538-541, theory secs. This violates “donation” theoi-y. same public policy considerations of does the “contract” Salaries of public fixed, open officers after discus openly should be sion, in legislative proper tribunal.
Respondents’ final contention is thus stated: insuperable “There is recovery by another to the relator obstacle in this case. N, Missouri, Section Article Constitution of provides as ‘No . . city follows: . . -. . shall be allowed become purpose indebted in manner ex- or for to an amount ceeding any year year, provided income and revenue for-such without the voting consent two-thirds of voters on such thereof proposition, at an election that'purpose. to be held . . .’ Two objects were in section; view the enactment of this constitutional object one raising was to limit the rates of taxation for annual required revenue purposes, for local and the other limit the was to power to beyond incur indebtedness the annual income and revenue provided year. for in each . pleadings . . Under the in this case it stands admitted that had the method followed in case to keep city year followed, its within income for not been obligations largely in excess of year the income for each fiscal have been only voluntary incurred. The alternative to this was the reduction of city might salaries so that all work operation and still the within the constitutional *15 provisions could be followed.”
It is true that the record shows that Kansas had full levied by amount general pur- authorized Constitution for municipal
1019 by ordinance fixed as that if all salaries poses. It is also admitted spent, were other amounts full, then with all paid had been have been inclusive, there would 1930 to 1936 during years annually disbursements, receipts year, actual each between deficit in- showing However, respondents’ averaging $542,642.99. was, as follows: amount of salaries come and all Necessary pay Amount year ending General
Fiscal Total by fixed in full as Salaries Receipts April 30th Fund
Ordinance $4,586,350.00 $6,755,469.00
1930 4,522,934.00 6,633,161.00 1931 4,357,694.00 6,068,047.00 1932 3,930,060.00 5,560,718.00 1933 4,352,148.00 6,250,762.00 1934 4,221,937.50 6,441,012.00 1935 4,429,249.50 6,440,820.00 during these delinquent taxes It also the total of was shown of salaries years the total amount $3,795,352.84, seven was while amounts by (difference fixed ordinance withheld between amounts fur- evidence years $3,798,498. Respondents’ paid) during these was ‘‘ pay- general fund ther on the showed that the number of had increased this number roll” in 1930 and that 1004) 663 to They (from to 3212. this showed that increase increased department, period in the health in the same expenditures by $270,239.00; total that there were increased over 1930 departments were expenditures departments; in other and that new However, added, municipal auditorium. liquor such as control and obligations dur- showing were incurred there was no as to when spent. ing any years, only the total amount Neither of those but paid spent, all over amounts attempt was there to show where showing any year. far from that “the on salaries* to in This is went “was only provision this constitutional alternative” to violation of city.” voluntary employees of the of salaries reduction illegal Certainly, proof that it and unconstitutional this was not any event, In the charter the salaries fixed ordinance. City Manager (who upon council, on the could placed and not authorizing only duty fixing other recommend), the salaries and expenditures city’s revenue. on a basis that would come within
Showing receipts that a deficit between and disbursements would year, payable taxes levied and dur exist at the end of a fiscal because year collected, ing delinquent and were not does not show became X, rea a violation of Section Article our Constitution two sons, recently Special stated this court in Clarence School District W. (2d) District No. 107 S. as follows: School “ 10) . . . (Sec. (the Art. First: ‘Under section
1020 collected, for
city) might anticipate collected, and to be revenue any given year, ordinary expenses, current and contract debts for pro binding the revenue would be ... to the extent of year, (Our italics.) vided Failure but not in excess of it.’ for during any year to collect not all taxes does invalidate levied therefor debts which were within amount contracted. levied when [Trask Livingston County, Earl, v. ex rel. supra; Book v. 87 Mo. State County Kerr, supra; Clark as to Hackmann, supra; v. Watson v. W. District, teacher’s see v. 23 S. fund Tate School 324 Mo. (2d) 1013, 70 A. L. R. 771.]” “ only period (under Second: ‘The which can be considered upon right debts) constitutional limitation to incur is the calendar year;’ Legislature anything and ‘the could not make but the calendar year the upon right bonds, basis which to consider the to issue debts,’ contract namely, year beginning January ending ‘A 1st and December Savings Sedalia, 31st.’ Trust & Bank v. [Union 300 Mo. cited; see, also, Dennig S. W. and cases & Co., making Swift (2d) S. W. Statutes year begin day July year school first of each and end on day the 30th succeeding year of June of the (or creating next a city’s year), certainly fiscal change provision do not this Constitution. is no There evidence in this record to' show indebted, year defendant became in calendar which could be in herein, volved in provided excess of ‘the inсome and revenue for such ” (cid:127) year.’ judgment is reversed and the cause remanded with directions judgment granting enter the peremptory writ of mandamus. Brad- ley Dalton, GO., concur.
PER foregoing CURIAM : The opinion by Hyde, C., is adopted as opinion of the judges court. All the concur. por Rehearing ON Motion and to Transfer to Court en Bano. HYDE, Respondents’ C. motion seeks either rehearing Division or a transfer to the Court en ground Banc. As a transfer, respondents suggest that a question federal is involved. How- ever, we decided the ease under provisions of our state Con- Respondents, stitution. grounds also as motion, for their reargue the public issues of policy, estoppel. waiver and As to matters, these rulings we adhere to the made in opinion our for the reasons therein Respondents argue stated. also question (which of laches we pleaded by note respоndents was not return), their and to a degree considerable this is might stated as it apply to a mandamus present action under Conceding conditions. officers of the would be barred the defense of laches from maintaining a man- n damus issue involved, this proceeding years for the herein pleaded) upon (if would have to be in this case it had been decided only time, the situation At that relator was that existed in 1937. n oneto then shows, remedy far as this record seek such so duress) nothing (taking there is into consideration the matter of to indicate he as soon he knew did not commence action *17 rights upon they his and learned the facts which were based. motion, to
Respondents, grounds as further for their seek raise the avail question of “there are unincumbered funds whether that, for to payment They say able of this in order claim.” .state a cause action, plead of it essential for relator to the avail was ability funds, of funds; such if the re that, and there are no such actually sult reached orders an act to be done that would in viola be 93, tion (Sec. of the charter Art. 4) and State Constitution (See. 12, X), “any unpaid salary Art. due relator for the because years lawfully constitutionally only paid 1932 to 1936 could and be n out years surplus of the income and revenue of those or from any succeeding year.” revenue in Respondents admit that no such point pleading as to was made thé briefs. course,
Of it is well settled that when is an attack made on pleading, stage at such a assignment late and after no such error of timely made, was given every it should the benefit of reasonable inference, implication arising intendment and from a liberal con struction. v. Missouri & Co., Gas Electric Mo. Service 315 [Morrow 106; 286 Railway S. W. Co., Brock M. & O. 330 Mo. 51 (2d) 100; S. W. Paebеn, Hawkins v. (2d) 58 S. W. Looking pleadings herein, to the alleged we find that relator 437.] the existence of provision by the charter (Sec. respondents cited 4) Art. prohibiting the Director of drawing Finance from a war rant “for appropriation which no has been made, or funds collected -especially etc.;” therefor, alleged and further that “it was and duty respondents pay to to relator the sum of One Hundred Sixty and ($160) Dollars for each of salary the aforesaid months as City for his to services Kansas aforesaid, as respondents but that and them, wholly each disregarded of enjoined the duties upon them the aforesaid statutes of the State of Missouri and charter and ordi nances of Kansas neglected” failed and pay relator certain stated sums. statement, Under this duty only could exist with payment. funds available for allegations The same were made as to аmounts withheld after salary relator’s was reduced to per $140.00 month the 1933 Considering ordinance. respondents’ pleadings evidence, to, hereinafter referred allegations we hold these to be against sufficient as an stage, attack at this under the rule established by the eases hereinabove cited. Hasty also v. Marengo County [See (Ala.), 433; Bank 89 So. 18 R. L. C. sec. State ex rel. Burley C.), Fooshe v. (S. S. E. (N. L. R. S.) A. deny that “they allegations
Respondents’ return to these Missouri, charter and ordinances statute of reason of aforesaid duty respondents it and is the City, Missouri, of Kansas Sixty ($160) Dollars of Hundred pay relator the sum One Kansas salary his services for each of the aforesaid months wholly them and each of deny respondents as aforesaid and statute enjoined the aforesaid disregarded upon them the dirties ’’ City; of Kansas Missouri, and ordinances of the State of charter аnd during rela- concerning which allegations period (after same has “they that relator salary month) that admit per tor’s $140 discharge they fulfill, perform and respondents made demand your the said sums pay to relator their duties as aforesaid and deny do, but failed refused so money, respondents have but Re- so to any legal obligation upon respondents do.” that there was periods the two spondents raised no different issues as between different ordinance rates. upon funds,
Respondents’ then the issue lack return stated trial, .as follows: relied at during the months “Respondents state that last further five *18 in his years during complains which relator of reduction said fiscal salary and there not and revenue collected that was funds sufficient City necessary operating ex- treasury pay of to the in the Kansas City, including the full amount of penses of Kansas of the salaries salary City by employees of Kansas as called for the schedule all paid ordinance, respondents had the full amount of salaries and that salary the Kansas provided in the schedule all relator, City its City, including respondents, the Kansas and the have, thereof, charged thereby with the administration officers particularly the of Kansas and compelled been violate Charter IV, thereof in Article Sections 85 in- budget provisions and the incurring clusive, obligations officers from from prohibiting said and treasury drawing the of Kansas unless were funds warrants payment thereof, therein unincumbered and available for 12 X of Section of Article of the Constitution.” also limitations reply specifically denied that insufficient made Relator’s revenue during necessary withhold salaries Thus it times mentioned. pleadings, respondents’ denying that instead of that apparent it is stating specifically wеre ever available or that were funds funds primary made the issue of not available whether “there upon legal obligation respondents” relator, for each was salary by worked, months he fixed of the ordinance. As to availability payment, only alleged the return of funds for that “during the last five months not available of each said were fiscal during complains relator years salary.” reduction his that there no applicable no means a denial were funds' This salary during of relator’s claim at other times payment the cal-
1023
year or
Wheeler
endar
when be made demand in 1937.
ex rel.
[State
Adams,
v. Tice
S. W.
Commonwealth
(Penn.),
upheld in
right
116 Atl.
to mandamus has been
illegally
applicable
cases
diverted
properly
where
funds have been
L.
payment.
to some other use after demand for
note
A.
[See
R.
Craig,
ex rel.
State
Lane v.