ON MOTION FOR REHEARING AND TO TRANSFER TO COURT EN BANC. [11] Respondents' motion seeks either a rehearing in Division or a transfer to the Court en Banc. As a ground for transfer, respondents suggest that a federal question is involved. However, we decided the case under the provisions of our state Constitution. Respondents, also as grounds for their motion, reargue the issues of public policy, waiver and estoppel. As to these matters, we adhere to the rulings made in our opinion for the reasons therein stated. Respondents also argue the question of laches (which we note was not pleaded by respondents in their return), and to a considerable degree this is stated as it might apply to a mandamus action under present conditions. Conceding that officers of the city would be barred by the defense of laches from maintaining a mandamus *Page 1021 proceeding in 1940, for the years herein involved, this issue would have to be decided in this case (if it had been pleaded) upon the situation that existed in 1937. At that time, relator was the only one to then seek such a remedy so far as this record shows, and (taking into consideration the matter of duress) there is nothing to indicate he did not commence this action as soon as he knew of his rights and learned the facts upon which they were based.
[12] Respondents, as further grounds for their motion, seek to raise the question of whether "there are unincumbered funds available for the payment of this claim." They say that, in order to state a cause of action, it was essential for relator to plead the availability of such funds; and that, if there are no such funds, the result reached orders an act to be done that would actually be in violation of the city charter (Sec. 93, Art. 4) and the State Constitution (Sec. 12, Art. X), because "any unpaid salary due relator for the years 1932 to 1936 could lawfully and constitutionally be paid only out of the income and revenue of those years or from any surplus revenue in any succeeding year." Respondents admit that no such point as to pleading was made in the briefs.
Of course, it is well settled that when an attack is made on a pleading, at such a late stage and after no such assignment of error was timely made, it should be given the benefit of every reasonable inference, intendment and implication arising from a liberal construction. [Morrow v. Missouri Gas Electric Service Co., 315 Mo. 367, 286 S.W. 106; Brock v. M. O. Railway Co.,330 Mo. 918, 51 S.W.2d 100; Hawkins v. Paeben, 332 Mo. 479,58 S.W.2d 437.] Looking to the pleadings herein, we find that relator alleged the existence of the charter provision cited by respondents (Sec. 93, Art. 4) prohibiting the Director of Finance from drawing a warrant "for which no appropriation has been made, or funds collected especially therefor, etc.;" and further alleged that "it was and is the duty of the respondents to pay to relator the sum of One Hundred and Sixty Dollars ($160) for each of the aforesaid months as salary for his services to Kansas City as aforesaid, but that respondents and each of them, wholly disregarded the duties enjoined upon them by the aforesaid statutes of the State of Missouri and charter and ordinances of Kansas City failed and neglected" to pay relator certain stated sums. Under this statement, the duty could only exist with funds available for payment. The same allegations were made as to amounts withheld after relator's salary was reduced to $140.00 per month by the 1933 ordinance. Considering respondents' pleadings and evidence, hereinafter referred to, we hold these allegations to be sufficient as against an attack at this stage, under the rule established by the cases hereinabove cited. [See also Hasty v. Marengo County Bank (Ala.), 89 So. 433; 18 R.C.L. 227, sec. 151; State ex rel. Fooshe v. Burley (S.C.),61 S.E. 255, 16 L.R.A. (N.S.) 266.] *Page 1022 Respondents' return to these allegations was that "they deny that by reason of the aforesaid statute of Missouri, charter and ordinances of Kansas City, Missouri, it was and is the duty of the respondents to pay to relator the sum of One Hundred and Sixty Dollars ($160) for each of the aforesaid months as salary for his services to Kansas City as aforesaid and deny that respondents and each of them wholly disregarded the duties enjoined upon them by the aforesaid statute of the State of Missouri, and charter and ordinances of Kansas City;" and (after same allegations concerning the period during which relator's salary was $140 per month) that "they admit that relator has made demand on respondents that they fulfill, perform and discharge their duties as aforesaid and pay to your relator the said sums of money, but respondents have failed and refused so to do, but deny that there was any legal obligation upon respondents so to do." Respondents raised no different issues as between the two periods of different ordinance pay rates.
Respondents' return then stated the issue of lack of funds, upon which they relied at the trial, as follows:
"Respondents further state that during the last five months ofsaid fiscal years during which relator complains of reduction in his salary that there was not sufficient funds and revenue collected and in the treasury of Kansas City to pay the necessary operating expenses of Kansas City, including the full amount of the salaries of all employees of Kansas City as called for by the salary schedule ordinance, and that had respondents paid the full amount of salaries as provided in the salary schedule to all the employees of Kansas City, including the relator, the respondents, Kansas City and its officers charged with the administration thereof, would thereby have been compelled to violate the Charter of Kansas City and particularly the budget provisions thereof in Article IV, Sections 85 and 99, inclusive, prohibiting said officers from incurring obligations and from drawing warrants on the treasury of Kansas City unless funds were therein unincumbered and available for the payment thereof, and also the limitations of Section 12 of Article X of the Constitution."
Relator's reply specifically denied that insufficient revenue made it necessary to withhold salaries during the times mentioned. Thus it is apparent that respondents' pleadings, instead of denying that funds were ever available or specifically stating that funds were not available in 1937, made the primary issue of whether "there was any legal obligation upon respondents" to pay relator, for each of the months he worked, the salary fixed by ordinance. As to availability of funds for payment, the return only alleged that they were not available "during the last five months of each of said fiscal years during which relator complains of reduction in his salary." This is by no means a denial that there were no funds applicable to the payment of relator's salary claim at other times during the calendar *Page 1023 year or when he made demand in 1937. [State ex rel. Wheeler v. Adams, 161 Mo. 349, 61 S.W. 894; Commonwealth v. Tice (Penn.), 116 A. 316.] The right to mandamus has been upheld in cases where properly applicable funds have been illegally diverted to some other use after demand for payment. [See note 98 A.L.R. 457, and State ex rel. Lane v. Craig, 69 Mo. 565.]
At the beginning of the trial, respondents put on evidence of the financial condition of the city. This showed that delinquent taxes (real, personal and merchants) for the period (1932-1936) covered by this action, amounted to more than $2,750,000, and that this was substantially the same amount as the total of all salaries withheld during that period. We know that the Legislature during this period provided for the payment of delinquent taxes of these years without penalty (Laws 1933, p. 423, Laws 1935, p. 408, Laws 1937, p. 572) and it is in the record that there were collections of delinquent taxes. Respondents' evidence mainly dealt with total amounts and did not go into details as to specific funds. Their evidence showed that in each successive year after 1933, until 1936 (all but $60 of the amount relator seeks to be paid accrued during or after 1933) the total amount of revenue received by the city increased over the previous year's receipts. (Increase for 1935 over 1933 was about $880,000 and 1936 receipts were substantially the same as 1935.) It also shows that during the years involved the total number of persons on the city payroll was materially increased (1932-2828; 1933-3041; 1936-3212); that the number in the Fire Department was increased, 1933-1936, about 9 per cent (1933-512; 1936-558); and that the Fire Department appropriation was increased, 1933-1936, about 18%. (1933-$744,351.82; 1936-$882,123.95). This is far from showing that the city was in such great financial distress that the salaries fixed by its 1933 ordinance (and the time prior thereto for which relator claimed) could not be paid or that there were no funds available in 1937 to pay relator's claim. Certainly, we cannot assume, on the basis of the facts in this record, that respondents are unable to comply with the order of the writ or will fail to do so. [See Lolordo v. Lacy, 337 Mo. 1097, l.c. 1110, 88 S.W.2d 353, l.c. 360.] Cases cannot be decided on appeal upon a state of facts not shown by the evidence offered at the trial, or upon defenses not presented in the trial court.
Respondents' motion is overruled. Bradley and Dalton, CC., concur.