162 Mo. 303 | Mo. | 1901
On the nineteenth day of April, 1892, plaintiff was employed by defendant city as an extra clerk in the office of the treasurer of the city, for which he received three
On June 17, 1892, plaintiff was duly appointed and commissioned notary ^ public for Jackson county, Missouri, for a term of four years, and while in the service of defendant city and during regular business hours, he took four thousand, two hundred and' thirty acknowledgments for her, which at fifty cents each, amounted to the sum of $2,115.50, to recover which he prosecutes this suit. It does not appear that he lost any time from his work by reason of these certificates and acknowledgments.
These fees never came into the hands of plaintiff but were paid into the treasury of defendant city, by the grantees named in the certificates of purchase and tax deeds. Plaintiff never made a demand on the city for these fees until March 15, 1893, when payment was refused.
It was agreed between the parties “that the sum of $2,~ 115.50 was collected by the city treasurer of defendant, paid into the general fund of defendant’s treasury, and that all of said sum has been appropriated and used by defendant for its own use and benefit; that said sum represents the total amount of notary fees for acknowledgments taken by plaintiff
No declarations of law were asked by plaintiff, but defendant asked the court to declare the law to be as follows:
1. The court, sitting as a jury, declares the law to be that if the plaintiff was receiving a salary of $75 per month from Kansas City as an extra clerk in the city treasurer’s office, which salary was to be compensation in full for his services as such clerk and that on February 4, 1892, the common council of Kansas City passed an ordinance that no fees should be received by the notary public working in the treasurer’s office, extra, such as are turned into the city treasury to the credit of the general fund of the city, and that all of the fees claimed by the plaintiff were for work done as a notary after the enactment of said ordinance, and that plaintiff knew of the existence of said ordinance when he took the acknowledgments to the deeds in question and did other notary work, then the plaintiff can not recover in his action.
“2. The court declares the law to be that a notary public may be estopped from claiming fees earned by him when it appears that he knew before he performed his official acts as a notary that no fees would be paid him and that it was expected by the party for whom he performed the notary services that no pay should be given.
“3. The court declares the law to be that a notary public, as at present commissioned and qualified, while admittedly a public officer in one sense of the word, is not such a public offieer as to not be amenable to the law of estoppel.
“4. The court declares the law to be that Kansas City, under its municipal charter and ordinances made in pursuance*309 thereof, can not be held for an action of money had and received by the plaintiff in this case.
“5. The court declares the law to be that Kansas City, by its charter and ordinance, has a right under the facts disclosed in this case, to collect and disburse the notary fees paid by the grantees in the certificates of purchase and deeds under tax sales, provided the said notary fees were earned during the time paid for by Kansas City to the plaintiff at the rate of $75 per month.”
Of these declarations of law all were refused except the third, and defendant duly excepted.
Judgment was then rendered in favor of plaintiff for the full amount of his claim, which, including interest, amounted to two thousand seven hundred and two dollars and fifty-five cents. Defendant appeals.
The position of defendant is, that when plaintiff accepted employment from the city, he was presumed as a matter of law to know of the existence of the ordinance of the city which provided that his salary as clerk should be in full compensation for the services which he might render the city as notary public. This presumption, however, was only to be indulged if the ordinance was valid, for if void there was nothing to be presumed with respect to it, but if valid it was as much a part of the contract of employment as if its provisions, terms and conditions had been made part of it. But the power to enact ordinances by defendant city can only be exercised within the limits of its charter, and in harmony with the Constitution and statutes of the State. [Town of Paris v. Graham, 33 Mo. 94.] “In this country, the courts have always declared that ordinances passed in virtue of the implied power, must be reasonably consonant with the general powers and purposes of the corporation, and not inconsistent with the laws and policy of the State.” [Dillon on Municipal Corporations, sec. 319.]
• The ordinance provides that no fees shall be received by 'said notary except such as are turned into the city treasury to the credit of the general revenue fund of the city, while by express provision of the statute he is entitled to charge and receive for his services the fees therein prescribed. It, therefore, seems impossible to conceive of an ordinance which would in its effect be more directly in conflict with the statutes referred to than this one.
Moreover, the power to pass such an ordinance is nowhere to be found in the city’s charter, either in express terms or by implication. It has no reference whatever to the affairs of the city government and was simply an unauthoritative attempt to divert the fees of an officer from the soprce provided by statute .for their payment.
But defendant, claims that although the ordinance may be void, plaintiff is estopped from taking advantage of its invalidity by having received his compensation under his employment. We must confess our inability to see the force of this contention, for with the ordinance out of consideration, plaintiff did nothing by which he could be estopped from claiming the fees received by defendant to which he was entitled. It is not claimed that he entered into any express contract, aside from the ordinance by which his fees as notary were to be received and retained by defendant, and the ordinance being void there was no express contract at all with respect thereto, hence nothing to estop plaintiff from claiming them by reason of said ordinance.
*311 “The rule is, that no one can be estopped by an act that is illegal and void, and an estoppel can only operate in favor of a party injured in a case where there is no provision of law forbidding the party against whom the estoppel is to operate from doing the act which is sought to be carried out through its operation.” [Nichols v. Bank, 55 Mo. App. 81; 2 Herman on Estoppel, 922.]
Defendant contends that in the absence of an express contract or understanding to the contrary, it was entitled to plaintiff’s entire time, hence, entitled to the fees which plaintiff earned as notary, and Leach v. Hannibal and St. Joseph Railroad Co., 86 Mo. 27, is relied upon as sustaining that contention. In that case it is said: “When one enters into a contract of service for another, for a fixed salary or compensation, he prima facie, agrees to give the latter his entire time; and the rendition of service by the employee as a notary public in the employer’s business, does not make the latter liable for the statutory fees therefor in the absence of an agreement or understanding to that effect, or a course of conduct between the parties showing such fees were not to be included in the employee’s salary.”
But that case is distinguishable from the case at bar in this. In that case, the notary fees sued for were for services rendered by the plaintiff in taking the acknowledgments of deeds and other instruments of writing executed by the railroad company for which by law it was required to pay, but which said services Leach may have rendered gratuitously if so inclined, or have entered into a contract express or implied by which in consideration of his employment at a fixed salary he was to have no fee for such services. And after having thus rendered the services he could not of course recover the fees allowed him by law therefor. In the case at bar, there was no such contract; besides, the city had no interest whatever in the
It follows that there was no error in refusing the declarations of law asked by defendant.
The judgment is affirmed.
