Summary
discussing Section 4 of the 1941 amendment to City's Charter which contained language identical to that of the first sentence of Section 4 of Article XVIII of City's present Charter
Summary of this case from Civil Service Commission v. Members of the Bd.Opinion
No. 38661.
July 20, 1943.
1. MUNICIPAL CORPORATIONS: St. Louis Civil Service Amendment: Board of Aldermen Limited by Salary Recommendations of Civil Service Commission. The recommendations of the Civil Service Commission of St. Louis as to rates of pay of city employees to be fixed by ordinance are mandatory limitations on the legislative power of the Board of Aldermen.
2. CONSTITUTIONAL LAW: Municipal Corporations: Limitation on Board of Aldermen Constitutional: Recommendation of Civil Service Commission Required. The charter of St. Louis may properly impose a limitation on the legislative power of the Board of Aldermen through permitting the rates of compensation of city employees to be fixed only on the recommendation of the Civil Service Commission. No power to legislate is conferred upon the Commission, but a limitation is imposed on the Board, which may not fix salaries without the recommendations of the Commission.
3. CONSTITUTIONAL LAW: Municipal Corporations: St. Louis Civil Service Amendment: Constitutional Division of Powers not Violated. The St. Louis civil service charter amendment does not violate Article III of the Missouri Constitution which divides the powers of government into the legislative, executive and judicial departments.
Appeal from Circuit Court of City of St. Louis. — Hon. Charles B. Williams, Judge.
AFFIRMED.
Joseph F. Holland, City Counselor, H.A. Hamilton and George L. Stemmler for appellants.
(1) The Constitution of the State requires that a Charter adopted by the City of St. Louis must provide for a house of legislation elected by the people, i.e., an assembly possessing legislative power. Article XVIII of the Charter, as construed by the lower court, deprives the Board of Aldermen of its primary legislative power and is unconstitutional and void. Constitution of Mo., Art. IX, Sec. 22; State ex rel. Rothrum v. Darby, 345 Mo. 1002. (2) Article XVIII of the St. Louis Charter does not prohibit the Board of Aldermen from amending an ordinance recommended by the Civil Service Commission and does not prohibit said Board of Aldermen from prescribing salaries without recommendation of said Commission. Charter of St. Louis, Article VIII, Section 1; Procter, Principles of Public Personnel Administration, pp. 43, 47, 62; Municipal Personnel Administration, published by the International City Managers' Assn. (1942), pp. 74, 75; Field, Civil Service Law, p. 23; D' Aloia v. Civil Service Com., 101 N.J.L. 427. (3) Where a statute or charter provision is capable of two interpretations, one of which is constitutional and the other unconstitutional, the courts will interpret the language in favor of the constitutionality of the law. Pitman v. Drabelle, 267 Mo. 78; State ex inf. v. American Colony Ins. Co., 336 Mo. 406; State ex rel. v. Smith, 342 Mo. 365.
Charles P. Williams for respondents.
(1) The proper interpretation of Section 4 (a) of the charter amendment. Noscitur a sociis. Charter Art. IV, Sec. 25; Art. XVI, Secs. 6, 8; Art. XVII, Sec. 3; Art. XXV, Sec. 1; Art. XXI, Secs. 1, 14; Art. XXII, Sec. 1; Art. XXIII, Sec. 12. More emphatic limitations are: Charter, Art. V, Sec. 26; Art. XXIII, Sec. 1; Art. IV, Secs. 25, 26. (2) "Recommend" cannot, consistently with the intention of the framers, be given a purely precatory significance. (3) The legislative power under the charter is expressly subject to the limitations of the charter. (4) The requirement of the recommendation of the Civil Service Commission constitutes a limitation on the power of the Board of Aldermen quite analogous to the limitations listed above. The word "recommend" ought not to mean one thing in one place and another thing in another place, in the same instrument. (5) Section 26 of the Charter Amendment seems to reinforce the intention to repose a power and responsibility in the Commission and the Department of Personnel. (6) The analogy of the classification plan supports our contention with respect to the compensation plan. (7) The following cases bear upon charter limitations: Wabash Railway Co. v. St. Louis, 64 F.2d 921; St. Louis v. Gleason, 89 Mo. 67, 14 S.W. 768; American Tobacco Co. v. Mo. Pac. Ry. Co., 242 Mo. 374, 157 S.W. 502. (8) Article III of our Constitution was never intended to apply to local and municipal subdivisions of the State. State ex inf. v. Kirby, 349 Mo. 988, 163 S.W.2d 990; State ex rel. v. Kansas City, 310 Mo. 542, 276 S.W. 389; Barnes v. Kirksville, 266 Mo. 270, 180 S.W. 545; Sarlls v. State, 166 N.E. l.c. 280. (9) Section 22 of Article IX of the Constitution does not invalidate precedent limitations. Kansas City v. Mastin, 169 Mo. 80, 68 S.W. 1037; Pash v. St. Joseph, 257 Mo. 332, 165 S.W. 710. (10) History and practice alike permit charter limitations upon what would otherwise be legislative powers.
In 1941 the people of St. Louis voted to amend the city's charter. The general purpose of the amendment was to provide a form of civil service for city employees in the classified service designed so as to insure employment and continuity of service on grounds of merit and fitness. The amendment has been before this court several [392] times through attacks on its constitutionality and on other grounds. See State ex inf. v. Kirby, 349 Mo. 988, 163 S.W.2d 990; Kirby v. Nolte, 349 Mo. 1015, 164 S.W.2d 1; State ex rel. v. Kirby, 349 Mo. 1010, 163 S.W.2d 964. We upheld its constitutionality in the case first mentioned.
The amendment created a civil service commission to set up and, to a limited extent, participate in the administration of the service. It provided for a director of personnel. One of his duties was to classify the various positions. The director prepared a classification and compensation plan which was approved and adopted by the commission. The plan, in the form of an ordinance, was then submitted and officially recommended to the mayor and board of aldermen for adoption. The board amended the compensation plan by reducing the salaries provided for some of the positions, including the director's, and with these and other changes passed the ordinance. The mayor approved it.
The civil service commission in this suit for a declaratory judgment against the board of aldermen and the mayor seeks a ruling that the board of aldermen may not pass and the mayor may not approve any classification or compensation plans unless the same are recommended by the commission. The trial court made such a ruling. The board's appeal is concerned only with the compensation plan.
Section 4 of the Amendment is the pertinent provision. It provides:
"Ordinances to Provide Further for Giving Effect to this Article. The Mayor and Aldermen shall provide, by ordinance:
"(a) for adoption of a comprehensive compensation plan for the fixing of rates of pay of all employes in the classified service, and amendments thereto, on recommendation of the Civil Service Commission, and for it application and interpretation."
The meaning and effect of the words "on recommendation of the Civil Service Commission" is the controverted issue. Are they words of suggestion or are they mandatory? We hold the latter. Such construction does not render the amendment unconstitutional.
St. Louis is a city under a special charter as authorized by the Constitution. Article IX, Section 22 thereof directs its charter must provide, among other things, "for a chief executive and for a house or houses of legislation." Granting that the fixing of a fundamental wage policy and rates of pay for various positions is ordinarily a legislative function, still the people of St. Louis, through an amendment to the charter, may properly impose a limitation on the legislative power to permit the fixing of such rates only on the recommendation of the commission.
In Kansas City v. Mastin, 169 Mo. 80, 68 S.W. 1037, we consider Section 17 of Article IX in connection with the Charter of Kansas City. That section stated the charter should provide for two houses of legislation. The question was whether the creation of a board of park commissioners by the charter violated such section by providing a so-called "third house of legislation." We held it did not. We relied on Kansas City v. Bacon, 147 Mo. 259, 48 S.W. 860. We said: "It was entirely competent to require as a condition precedent, a prior recommendation of the park board. Such a provision confers no power on the board to legislate, but merely imposes a limitation upon the council. Until the council acts, no park can be established. . . . The city councils of said cities have not unlimited powers of legislation without regard to their charters, and it was never intended they should have."
We quoted the above with approval in Pash v. St. Joseph, 257 Mo. 332, 165 S.W. 710, construing an ordinance for the establishment of park districts on the recommendation of the park board. We held the language of the ordinance — "said board . . . shall recommend to the city" — to be "mandatory and must be obeyed by the . . . council."
In the St. Louis Charter the legislative power is expressly subject to the limitations contained in the charter. The charter provides: "The legislative power of the city, shall, subject to the limitations of this charter, be vested in a board of aldermen . . ." Art. IV, Sec. 1.
We hold that Article VIII, Section 7, which provides that the board of aldermen shall by ordinance fix, or provide the fixing of, salaries or compensation for city employees, is subject to the limitations imposed by the amendment. Accordingly, the board may not fix salaries without the recommendation of the commission.
[393] There are a number of such limitations on the legislative power contained in the charter. Among them are the following: Article V, Section 26.
"The board of aldermen shall not have power . . . to acquire real estate by private purchase except by ordinance recommended by the board of public service."
Article XXII, Section 1:
"No ordinance for public work or improvements of any kind, or repairs thereof shall be adopted, unless prepared and recommended by the board of public service, with an estimate of the cost endorsed thereon."
Article IV, Section 25:
". . . No ordinance making, changing or transferring an appropriation or contemplating or involving the payment of any money, shall be adopted unless the board of estimate and apportionment shall have recommended or joined in recommending the same."
Article IV, Section 26:
"The board of aldermen shall not have power . . . to authorize the compromise of any disputed contractual demand, or any allowance on account thereof not provided for in the contract, except on recommendation of the board of estimate and apportionment."
We find eight other sections authorizing action when "recommended" by the authority indicated. The word recommend in this connection assumes its meaning to advise or counsel. Webster's New International Dictionary, 2 Ed. Exercise of power limited upon the advice of another is not uncommon.
The amendment does not violate Article III of the Constitution which divides the powers of government into the legislative, executive and judicial departments. This was decided in State ex inf. v. Kirby, 349 Mo. 988, 163 S.W.2d 990, supra.
In that case we distinguish the case of State ex rel. Rothrum v. Darby, 345 Mo. 1002, 137 S.W.2d 532, and held its ruling was not applicable to the questions arising under a civil service plan.
So long as the people may change their charter of government by their own will, subject only to restrictions self-imposed under a constitution, it does not appear to us that their political liberty merits the apprehension expressed.
The judgment of the learned judge is affirmed. All concur except Gantt, J., absent.