Kansas City Loan Guarantee Co. v. Kansas City

GRAVES, J. Appellant purchased of J. W. Carson, P. H. Mclver, P. Anderson and Walter S. Bohan, their respective accounts against respondent for labor done in the street department of respondent city, and took from each of them a written assignment of their said respective claims. Appellant then instituted an action before a justice of the peace, filing a statement in four counts, and recovered judgment there against respondent in the aggregate sum of $24.04, the amount of said four assigned claims. Appeal was taken to- the circuit court of Jackson county, wherein respondent filed an answer, which after a general denial, pleaded that under Ordinance No. 11125, employees of the city were prohibited from assigning their claims, either earned or unearned, and the assignments were therefore void. By way of reply appellant set up that said ordinance did not affect an assignment of .earned compensation, and further that if the said ordinance did affect the assignment of earned compensation, it was violative of the statutes of the State, and the Constitution of the State, setting out the provisions of the statutes and Constitution claimed to-have been violated thereby. Trial was had before a jury, and under a peremp — 165 — tory instruction from the court a verdict for respondent was returned; motion for new trial proving unavailing, an appeal was taken. The evidence shows the indebtedness of the city, respondent, in the amounts claimed by appellant, and in the total amount of $24.04 as claimed. The only dispute is as to the construction and effect of the ordinance pleaded by respondent.' This ordinance, in so far as is necessary to set out, is as follows: “Section 1. No person shall combine Ms claim against Kansas City for salary or for any other de^ mand with that of another dr 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 actuálly 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 book 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 himself 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 — 166 — 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 under section 1176, chapter XIX, article III, of Revised Ordinances of 1898, and all officers and employees not holding their office or appointment under section 1176, chapter XIX, article III, Revised Ordinances of 1898, who shall sell or assign their unearned salaries, unearned wages or earnings, shall thereby be subject to immediate discharge and suspension, and the head of any department in which any such employee works shall discharge said employee upon receiving information of such sale of unearned salary or wages, and the head of any department shall be removed as provided in sections 8 and 9, article IV, of the city charter, and the selling or assigning his unearned salary shall be sufficient cause for removal under sections 8 and 9, of the city charter. ’ ’ The foregoing sufficiently gives the facts. The accounts or claims involved in this case are for wages already earned. One of the contentions of the appellant is, that the ordinance does not cover such claims; that it does not prohibit the assignment and transfer of such claims; that the ordinance is leveled at unearned claims, salaries or wages Respondent practically admits that section 3, the penal section of the ordinance, in terms, does not cover a claim for earned wages, but argues that when the whole ordinance and the several sections thereof, are read and construed together, the clear meaning of the ordinance is a prohibition of the assignment of earned as well as unearned wages. In this we think respondent is wrong. Respondent claims that because there is a prohibition in the ordinance as to who shall receipt for a warrant, that this amounts to a prohibition of an assignment of a valid claim for wages already earned. Respondent overlooks the fact that the claimant does — 167 — not have to ask for a city warrant before being entitled to sue and recover upon his claims. In 1 Dillon on Municipal Corporations (4 Ed.), section 501, the law is announced thus: “A creditor of a town is not bound to receive an order upon the treasurer, but may sue upon his original cause of action. ’ ’ In International Bank of St. Louis v. Franklin County, 65 Mo. l. c. 113, this court has said: “Nor is there any reason or justice in saying that the creditor must allege and prove funds to be in the Treasury because he took a warrant, or because he took such a warrant. Upon a refusal to pay he might return the warrant and sue upon the original consideration.” When, by the terms of employment, wages are due, the right to sue and recover inures to the claimant and this right is the property of the claimant and is such a right as can be assigned, unless there is some valid law prohibiting the exercise of the right. The claim of these claimants against the city of Kansas City for wages earned, is property or choses in action, subject to alienation and assignment as a general rule. But to get back to the question first suggested. Even if a valid ordinance could be passed by respondent restraining the right of a claimant to assign his earned wages, does this ordinance so do? Nothing is said in either section 1 or section 2, in express terms, about the assignment or non-assignment of such claims. In fact, neither earned nor unearned wages are mentioned in these two sections. Such an ordinance must be strictly construed, for if it does undertake to' prohibit the assignment of earned wages it is in derogation of common right and this alone will invoke the rule of strict construction and the courts will closely scan the language of the ordinance. [Carpenter v. Realty Co., 103 Mo. App. l. c. 494.] But, further, there is a penal section to the ordinance which always demands the enforcement of the — 168 — rule of strict construction. In such cases a statute or ordinance cannot he carried beyond its express terms. [Town of Pacific v. Seifert, 79 Mo. l. c. 215; Fowler v. City of St. Joseph, 37 Mo. 238; Ellis v. Whitlock, 10 Mo. 781; Rozelle v. Harmon, 103 Mo. l. c. 343; State v. Gritzner, 134 Mo. 512; State v. Reid, 125 Mo. l. c. 48.] In the Rozelle case, supra, it is said: “In cases of statutes, penal in their character, or in derogation of common right, a strict construction is required, but, in regard to statutes merely remedial in their character, a fair, if not liberal, construction should be given. ’ ’ In the case of State v. Reid, supra, the rule is announced in this language: “A familiar rule- of construction of criminal statutes, is that they should be strictly construed and not extended or enlarged by judicial construction, so as to embrace offenses and persons not plainly within their terms. The reason of the rule is found in the tenderness of the law for individuals and on the plain principle that the power of punishment is vested in the Legislature and not in the judicial department.” Now, with these rules of construction, let us analyze sections one arid two of this ordinance. Section 1 does not prohibit the assignment of a claim or a cause of action against the city. It prohibits the combination of claims, for salaries or other demands, thus prohibiting one warrant instead of two or more; second, it prohibits the issuance or payment of a warrant to any person other than the person doing the work. No.t a word is said about a person assigning or selling his claim for wages fully earned, and thus giving to his assignee the same right to sue upon it without receiving a warrant as claimant himself had and would have, without asking for or receiving a warrant. Section two is no broader. It prohibits any person from receipting for a warrant other than the person actu — 169 — ally doing the work except in the case of persons residing outside of the corporate limits of the city. No prohibition here as to the right of a person to assign to another his claim or cause of action against the city for earned wages. Section 3 especially condemns, eo nomine, the assignment of 'unearned wages, but nowhere even suggests the subject of assignment of claims for earned wages. So that it appears that not one of the three sections of this ordinance condemns, in express terms, the assignment of earned wages. Nor taken as a whole, do they condemn the alienation or assignment of such claims, by express terms. If such prohibition is to be held to be within the purview of these sections, it must be written and read into them by the court upon the merest implication, a thing not done in penal ordinances or statutes, when judicial construction is demanded. This is a highly penal ordinance. In its own language, “Any persons 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.” Now, suppose the city had caused the arrest of one of these parties, who made the assignment. of their claims, and had charged the violation of this ordinance, “by then and there unlawfully selling and assigning to the Kansas City Loan Guarantee Company a claim for wages already earned, due to J7 W. Carson and due from the city of Kansas City,” could it be contended for a moment that there should be a conviction under this ordinance? Would the courts for a moment sustain a conviction? We think not. Yet if a ban is, in fact, placed upon the assignment of earned wages by this ordinance, the party making the assignment must be liable to a prosecution and fine. This is a penal ordinance and if the ban of the ordinance cannot be sustained in the quasi-criminal proceedings — 170 — neither can it be sustained in a civil action. If the prohibition is there at all, it is there for all purposes and for all kinds of cases. But in our judgment, the prohibition, as to the assignment of earned wages, is not in this ordinance in such express terms as to authorize us to declare it to be there. A very interesting question, as to whether or not the city could pass a valid ordinance is suggested by the briefs in this case, but having reached the conclusion hereinabove expressed, a full determination of the case is had without the consideration of that question. It will be time enough to pass upon that question when an ordinance is before us which squarely raises the issue. "We therefore conclude that the ordinance introduced in evidence is no defense to this action, and this cause will be reversed and remanded for further proceedings in accordance with these views. All concur.