Opinion
No. 28195.
September 11, 1951.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, ROBERT L. ARONSON, J.
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.
This is an action by some twenty-three of a much large 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, § 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, § 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, § 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 him rights and impose duties upon him which are akin to those of public office. If he occupies a mere contractual relationship with the governmental authority, then his status is not in any sense different from that of a private employee; and if he is unlawfully deprived of his position, his earnings from other employment during the period of his removal may be deducted from the amount which would otherwise be due him as the compensation which his employer had contracted to pay. 67 C.J.S., Officers, § 99d; 150 A.L.R. 110
A familiar example is that of a teacher in the public schools, who holds his position under contract, and whose recovery for the district's breach of his contract is subject to be reduced by the amount of his actual or potential earnings from other employment during the term of his contract, where the district sustains its burden of proof upon the issue of mitigation. Tate v. School Dist. No. 11 of Gentry County, 324 Mo. 477, 23 S.W.2d 1013, 70 A.L.R. 771; Edwards v. School Dist. No. 73 of Christian County, 221 Mo.App. 47, 297 S.W. 1001; Wood v. Consolidated School Dist. No. 13, Mo.App., 7 S.W.2d 1018.
There is no claim that the plaintiffs in this case are public officers, but instead the whole contention is that as permanent civil service employees of defendant city they occupy a status which is entirely different from that of private employees, and which entitles them to the same protection as that enjoyed by public officers in so far as concerns the right of the city to deduct their earnings from other employment during the periods of their illegal exclusion from their respective positions in the classified service.
The civil service amendment was adopted in 1941, and is now designated as Article XVIII of the charter. Its announced purpose, as stated in Section 2, is to provide a modern and comprehensive system of personnel administration for the city, whereby economy and effectiveness in the personal services rendered to the city, and fairness and equity to the employees and the taxpayers of the city alike, may be promoted. It is provided by Section 2 (a) that all appointments and promotions to positions in the city service, and all measures for the control and regulation of employment in such positions or separation therefrom, shall be on the sole basis of merit and fitness to be determined by means of competitive tests, or service ratings, or both. By Section 1(d) all positions are placed in the classified service except those specifically excluded; and by Section 3(f) provision is made for indefinite tenure of employment in positions in the classified service during meritorious service, except in cases for which definite terms are prescribed by law or charter.
In view of the fundamental distinction which exists between public officers and mere public employees in the matter of the character of their relationship to the governmental authority, it is of particular importance to observe how the charter treats the term "employee" as regards the status which the civil service amendment has created for persons holding positions in the city service.
By Section 1(i) an employee is defined to be "a person legally occupying a position", and by Section 1(k) a position is defined to be "any appointive or elective office, and any employment, or two or more of such offices and employments the duties of which call for services to be rendered by one person".
It is thus to be seen that as to persons holding positions covered by the civil service amendment, the charter effectively eliminates any distinction between officers and employees as commonly understood, and in fact designates all holders of civil service positions as employees. Furthermore the same result would necessarily follow from a judicial construction of the amendment, even though the amendment itself did not so plainly put all positions in one and the same category.
In other words, the relationship between the city and its permanent civil service employees is not contractual as is the case, for instance, with school teachers, who are employed under definite contracts with their districts. On the contrary, permanent civil service employees are given indefinite tenure, which takes the place of the fixed terms ordinarily allowed to public officers. State ex rel. Rundberg v. Kansas City, 206 Mo.App. 17, 226 S.W. 986. Their positions and their compensation are both fixed by law; and with all positions under the civil service put upon the same footing whether or not the holders of such positions would otherwise be regarded as officers or mere employees, there is no longer any room for the application of the rule of avoidable consequences in the case of any permanent civil service employee who is illegally excluded from his position. State ex rel. Rothrum v. Darby, 345 Mo. 1002, 137 S.W.2d 532.
We are well aware that the courts, in disposing of cases involving the question now at issue, have by and large refused to treat the status of civil service employees as analogous to that of public officers, and have held instead that the duty to minimize damages, which is incumbent upon employees generally, is equally applicable to civil service employees. 150 A.L.R. 113. However those decisions, while undoubtedly correct on their own facts, are not persuasive in dealing with a situation arising under a charter such as that of defendant city, which expressly wipes out any distinction between officers and employees as to positions affected by its provisions. State ex rel. Rothrum v. Darby, supra. In view of this circumstance, it is actually immaterial how these plaintiffs are denominated, since their status as permanent civil service employees affords them the same rights and privileges as to tenure and compensation as would otherwise have belonged to officers alone. By reason of this fact the present case falls squarely within the rule of State ex rel. Langford v. Kansas City, supra, where the Supreme Court denied the city the right to deduct what Langford had earned in other employment during the period of his unlawful exclusion from his position in the civil service.
It follows that the judgment rendered by the circuit court should be affirmed, and it is so ordered.
ANDERSON, P. J., and McCULLEN, J., concur.