Summary
explaining that the constitutional prohibition does not apply when no compensation was fixed for the office at the commencement of the term, because nonexistent compensation cannot be increased
Summary of this case from Laclede County v. DouglassOpinion
No. 37814.
June 7, 1943. Rehearing Denied, July 6, 1943.
1. MUNICIPAL CORPORATIONS: Officers: City of St. Louis; Salary of Treasurer Fixed Under Void Charter Provision. The Municipal Assembly of St. Louis, having powers similar to those of a county court, had the right to fix the salary of the city treasurer under the provisions of Sec. 13800, R.S. 1939. But the city was acting under the assumption that the treasurer was a city office under the charter, and the Municipal Assembly passed an ordinance under the provisions and limitations of the charter, instead of making an order determining just and reasonable compensation under the provisions of Sec. 13800.
2. MUNICIPAL CORPORATIONS: Statutes: Ordinance Fixing Salary of Treasurer Void. Since the ordinance fixing the salary of the city treasurer was enacted pursuant to a void provision of the charter of St. Louis, the ordinance is likewise void.
3. CONSTITUTIONAL LAW: Officers: No Increase in Salary During Term for Which Elected. No salary having been validly fixed by the Municipal Assembly of the City of St. Louis at a lower figure when the term of office commenced, the subsequent act of the Legislature fixing the salary of the treasurer of the City of St. Louis at $8000 per annum did not increase such treasurer's salary during the term for which he was elected, in violation of the Missouri Constitution.
Writ of Error to Circuit Court of City of St. Louis. — Hon. Robert Kirkwood, Judge.
AFFIRMED.
Joseph F. Holland, City Counselor, and Oliver Senti, Associate City Counselor, for plaintiff in error.
(1) The compensation or fees of a state, county or municipal officer cannot be increased during his term of office. Constitution of Mo., Sec. 8, Art. XIV. (2) Prior to May 22, 1939, the relator was required by the general law of the State relating to county treasurers to perform official duties relating to the City of St. Louis as a political subdivision. State ex rel. McKittrick v. Dwyer, 343 Mo. 973, 124 S.W.2d 1173. (3) Prior to May 22, 1939, the relator was required by the ordinances of the City of St. Louis to perform official duties relating to the City of St. Louis in its corporate or municipal capacity. State ex rel. McKittrick v. Dwyer, supra. (4) The official duties which relator was required by the Act of May 22, 1939 (increasing his salary), to perform in relation to the City of St. Louis as a political subdivision, are identical with those duties which he was theretofore required to perform by the general law relating to county treasurers. Art. 8, Chap. 85, R.S. 1929. (5) Prior to May 22, 1939, the relator was entitled to receive as compensation for his services as city treasurer such just and reasonable sum as the county court allowed. Sec. 12138, R.S. 1929. (6) The Board of Aldermen was authorized to perform, for the City of St. Louis, the functions of the county court. Sec. 14796, R.S. 1929. (7) The Board of Aldermen, acting as the county court, fixed the salary of relator as city treasurer at $5000 a year prior to his election. (8) Relator's salary was so fixed prior to his election that it could not be increased during his term of office without violating Section 8 of Article XIV of the Constitution of Missouri. Givens v. Davies County, 107 Mo. 603; State ex rel. Holmes v. Thatcher, 116 Ohio 113; Purcell v. Parks, 82 Ill. 346; McNew County Judge v. Commonwealth, to the Use, etc., 123 Ky. 115; Morgan Co. v. Fidelity Deposit Co., 200 Ala. 690; Franklin County v. Richardson, 202 Ala. 45; Gillespie v. County Auditor, 267 Mich. 483; State Consul Publishing Co. v. Hill, 3 P.2d 525; Commonwealth v. Cooper, Treasurer, 31 D. C. 659.
Louis B. Sher for defendant in error.
(1) Where the power is given by the Constitution of a state to fix salaries of public officers, that power remains unexhausted until the Legislature acts, but when once fixed by statute it cannot be changed during the term of the officer affected thereby. Stone v. Pryor, 45 S.W. l.c. 1056; Purcell v. Parks, 82 Ill. 356; State ex rel. Hueller v. Thompson, 316 Mo. 272. (2) Constitution of Missouri, Article IX, Section 12, provides: "The General Assembly shall, by a law uniform in its operation provide for and regulate the fees of all County officers, and for this purpose may classify the Counties by population." (3) Article IX, Section 13, of Constitution of Missouri: "The fees of no executive or ministerial officer of any County or Municipality . . . shall exceed the sum of $10,000.00 for any one year . . ." (4) The word "fees" in the above constitutional provisions includes salaries or compensation to county officers. State v. Riedel, 46 S.W.2d 131; Callaway County v. Henderson, 119 Mo. 32. (5) Statutes commuting fluctuating fees of officers to a fixed salary not to exceed $10,000 per annum are valid, and are proper legislation necessary to carry into effect Section 13 of Article IX of the Constitution. Kenefick v. St. Louis, 127 Mo. 1. (6) The Act of May 22, 1939, with an emergency clause, applicable to treasurers in cities of 600,000 or more inhabitants, carries into effect the legislative mandate of Article IX, Sections 12 and 13, and is, therefore, constitutional. (7) This new enactment definitely fixing the City Treasurer's salary at $8,000 per annum gives meaning and effect to the words "unless otherwise provided by law," found in Section 12138, R.S. 1929, now Sec. 13800, R.S. 1939, which delegates the power to the county court to allow the treasurer such compensation as may be deemed just and reasonable, and was within the lawful power of the Legislature to enact during the term of the city treasurer for which he was elected. (8) The provision in a constitution that no salary or compensation of any public officer shall be increased or diminished during his term of office applies only to such salaries or compensation of public officers as have been definitely fixed or prescribed by law, either by the Constitution of the State or by some statute made in pursuance thereof. Throop on Public Officers, sec. 476; Mechem on Public Officers, sec. 858; State ex rel. v. Gordon, 238 Mo. 168; Rucker v. Supervisors, 7 W. Va. 661; Harper v. Board of Commissioners, 54 Okla. 545; James v. Duffy, 140 Ky. 604, 131 S.W. 489; State v. McDowell, 19 Neb. 442. (9) The General Assembly is vested with power to reorganize the office of the city treasurer in cities of 600,000 or more inhabitants, and to fix definitely the compensation and term of the encumbent, by whom to be commissioned, and amount of bond, and therefore the incidental increase in the salary of the city treasurer, by the Act of May 22, 1939 (previously fixed by the city ordinance enacted on April 8, 1931, at $5000 per annum, but which did not fix such salary by express provision for the term of said officer), is not in violation of the letter or spirit of Section 8, Article XIV, of the Constitution. State ex rel. Hueller v. Thompson, Auditor, 316 Mo. 272; Stone v. Pryor, 45 S.W. l.c. 1056. (10) Section 8 of Article XIV of the Constitution applies only to those officers (1) whose salary or compensation is definitely fixed by statute prior to the enactment providing for an increase, and (2) who have been elected or appointed for a definite term of office. 46 C.J., sec. 259, p. 1024; Throop on Public Officers, section 476; Mechem's Public Office and Officers, sec. 385; State ex rel. v. Gordon, 238 Mo. 168; State ex rel. Dietrich v. Daues, 278 274 S.W. 430; Supervisors v. Hackett, 21 Wis. 613; Rucker v. Supervisors, 7 W. Va. 661. (11) The Charter of the City of St. Louis, Section 1, Article VIII thereof, without regard to and ignoring the General Laws of this State, providing for the periodic election of county treasurers (Section 12130, R.S. Mo. 1929 et seq., now Sec. 13789 et seq., R.S. 1939, which includes the city treasurer under the decision in State ex rel. McKittrick v. Dwyer, 124 S.W.2d 1173), expressly gave the power to the Mayor to appoint the treasurer, and by Section 24, Article XV of said Charter, undertook to fix the salary of said treasurer at $5000 per annum, though under Section 12138, R.S. 1929, the county court was authorized to allow him for his services such compensation as may be deemed just and reasonable. The city ordinance enacted by the Board of Aldermen on April 8, 1931, automatically followed the charter provision as to salary and fixed it at the same amount, but for no definite period of time, nor for the term of the officer elected or to be elected. (12) The county court (or in the City of St. Louis, the officers and body named in the above Act of 1877), the agency most familiar with the fiscal affairs and financial condition of the county, as well as the services required to be performed by the treasurer, is empowered to fix a just and reasonable compensation of the treasurer, which may vary in different counties and at different times in the same county. State ex rel. Dietrich v. Daues, 287 S.W. 430. (13) Section 24, Article XV, of the Charter of the City of St. Louis, fixing the salary of the city treasurer, was therefore void. (14) There is nothing on the face of the city ordinance enacted April 8, 1931, fixing the salary of the city treasurer at $5000, to show that the Comptroller of the City of St. Louis performed his duty previously vested in the county court and to him granted, and that he approved this ordinance in that capacity. (15) A constitutional provision prohibiting the change of compensation after an election or appointment during the term of an officer does not apply where prior to such time no salary or compensation has been fixed for that office, and so a statute fixing the salary of an officer does not increase the salary during the term where the law fixing the compensation at the time of election was invalid. Marion County Fiscal Court v. Kelly, 56 S.W. 815; Arnold v. Sullenger, 200 Cal. 632; 46 C.J., p. 1025, sec. 262. (16) In view of the language used in Section 12138, R.S. 1929 (now Section 13800, R.S. 1939) as regards the compensation of the treasurer, it has been held that the compensation of the county treasurer could be increased, changed or diminished during the incumbency of that office. Dietrich v. Brickey, 277 S.W. 615.
This case has reached the writer on reassignment. In November, 1936, H.C. Menne was elected Treasurer of the City of St. Louis for a term of four years. Menne died in August, 1938, and the Mayor of St. Louis, proceeding under Section 1, Article VIII of the Charter of St. Louis, appointed the relator, John J. [855] Dwyer, Treasurer to fill the vacancy and unexpired term. In quo warranto this court held that under the "scheme" (Secs. 20-26, Art. IX, Const. of Mo.) separating the city and county, the City of St. Louis became both a political subdivision of the state and a city in its corporate capacity; that the general statutes relating to county treasurers applied, and that the Mayor could not appoint the treasurer but that he must be elected. [State ex inf. McKittrick v. Dwyer, 343 Mo. 973, 124 S.W.2d 1173.] Meanwhile, and on November 8, 1938, Dwyer was elected Treasurer of the City of St. Louis for Menne's unexpired term.
Throughout this opinion, the defendant in error will be referred to as relator, and plaintiff in error as respondent, as they were designated in the trial court.
This is a proceeding in mandamus to compel the payment of relator's salary, as Treasurer, at the rate of $8,000.00 per annum, the sum fixed by Laws, 1939, p. 486 (now Sec. 7784, Mo. R.S.A.), from May 22, 1939, the effective date of said act, until the end of said unexpired term. Respondent contended said salary was $5,000.00 per annum. A salary of $5,000.00 was provided for both by Section 24, Art. XV of the Charter and by Section 1134 of the Revised Ordinances. The trial court found for the relator that he was entitled to the sum of $2,447.54, or the difference in the annual salary at $5,000.00 and $8,000.00 a year from May 22, 1939 (the effective date of Laws of Mo. 1939, p. 486) to March 15, 1940 (the date this action was filed), and that thereafter he was entitled to be paid on the basis of $8,000.00 per year.
The respondent Nolte, Comptroller of the City of St. Louis, contends that he is not entitled to receive the greater salary because it is an increase in his compensation during his term of office, within the meaning of, and in violation of, Section 8, Article XIV of the Constitution of Missouri. He also contends that the Municipal Assembly of the city was authorized to fix, and had fixed, the salary of the office at $5,000.00 by Sec. 1134 of the Revised Ordinances, and that the city was authorized to pass such ordinance by virtue of Section 23, Article IX of the Constitution of Missouri, and Section 15745, Mo. R.S.A., together with the general statutes relating to county treasurers, especially Section 13800, Mo. R.S.A., as it had a right to do and, therefore, the relator could not receive the increased compensation.
Section 23, Article IX of the Constitution of Missouri provides that the City of St. Louis shall "perform all other functions in relation to the State, in the same manner, as if it were a county as in this Constitution defined . . .;" while Sections 15744 and 15745, Mo. R.S.A., provide that the municipal assembly of St. Louis shall perform any act or duty which the law required to be performed by a county court. Section 13800, R.S. '39, [since amended] read as follows:
"Unless otherwise provided by law, the County Court shall allow the treasurer for his services under this article such compensation as may be deemed just and reasonable, and cause warrants to be drawn therefor."
Under Section 23, Article IX of the Constitution of Missouri and the statutes above referred to, there can be no doubt that the Municipal Assembly of St. Louis had the power to fix the compensation of the Treasurer at some "just and reasonable" sum. Among other reasons why his salary was not increased during his term of office in a constitutional sense, relator says the Municipal Assembly did not attempt to comply with Sec. 13800, supra, but that Sec. 1134 of the Revised Ordinances was enacted pursuant to Section 24, Article XV of the charter, which charter section is void. We are of the opinion that this ordinance shows on its face that it was passed pursuant to the charter provisions, and not pursuant to Sec. 13800. Section 24, Article XV of the charter, provides, among other things, that "he [Treasurer] shall receive a salary of five thousand dollars per annum." Sec. 1134, Revised Ordinances, is practically a verbatim copy thereof. It says, "The treasurer shall receive a salary of five thousand dollars per annum." Thus we see that the language of the ordinances follows the language of the charter. Prior to our ruling in State ex inf. McKittrick v. Dwyer, supra, the City of St. Louis took the position that the Treasurer was a city office, and was operating under the charter provisions in reference to the office of Treasurer, and not under the general statutes relating to county treasurers. It was therefore necessary for the ordinance (Sec. 1134, passed in 1931) to comply with the charter. Since the charter fixed the salary at $5,000.00 per annum, the Municipal Assembly had no discretion in the matter of fixing the salary, but was bound, under the city's position at the time, and did follow the charter in passing such ordinance, and [856] consequently fixed the salary at the rate specified in the charter, namely, $5,000.00.
As pointed out above, Sec. 13800 provides that the county court (in this instance, the Municipal Assembly) shall allow the treasurer such compensation "as may be deemed just and reasonable." In other words, the county court (or the assembly, as the case may be) in fixing such compensation must exercise its discretion. In the case of State ex rel. Dietrich v. Daues et al., 315 Mo. 701, 287 S.W. 430, this court said: "It requires no citation of authority to show that the power to prescribe a salary as an incident to a public office is purely legislative in character. That power, as respects the office of county treasurer, the Legislature has delegated to the county court, the agency most familiar with the fiscal affairs and financial condition of the county, as well as the services required to be performed by the treasurer — which may vary in different counties and at different times in the same county. The only limitation upon the power is that the compensation allowed thereunder be such as may be deemed just and reasonable. What is just and reasonable in a given case is committed to the discretion of the county court and to it only. Its action in the exercise of that discretion is not subject to judicial review, for the simple reason that neither the statute which confers the discretion nor any other makes it so."
There is no showing that the compensation fixed by the ordinance in question was considered by the Municipal Assembly to be "just and reasonable." Nor do we think that if said assembly had been attempting to comply with Sec. 13800 it would have been necessary to enact an ordinance for that purpose. It could have made an order, as was done in the Dietrich case. The order in that case recited that the salary fixed was just and reasonable. We do not mean to say that because the compensation was fixed by ordinance, and not by order, and that, when passed, there was no showing that the amount was considered "just and reasonable" conclusively shows that the assembly was not attempting to comply with Sec. 13800; but that these matters, when coupled with the further circumstance that the city was then attempting to operate under the charter provisions in relation to the office, and the fact that the ordinance did follow the charter provisions is sufficiently persuasive to justify the conclusion that the ordinance was not passed under the authority of the statute, and therefore there was no exercise of that discretion directed by the statute.
In the case of State ex inf. McKittrick v. Dwyer, supra, the issue was as to the validity of the charter provision giving the Mayor power to appoint the Treasurer. The provision was held void as in conflict with the general statutes in relation to the office of County Treasurers. For like reason, that part of the charter fixing the Treasurer's salary is void, it being repugnant to Sec. 13800. "When the ordinances or charter provisions are or become in conflict with prior or subsequent state statutes, such ordinances or charter provisions are or become, void, and must yield to the higher law." [State ex rel. Volker et al. v. Carey, 345 Mo. 811, 136 S.W.2d 324. See, also, Tremayne v. City of St. Louis, 320 Mo. 120, 6 S.W.2d 935, and Sections 23 and 25, Article IX, Missouri Constitution.]
It follows that since Sec. 1134 of the Revised Ordinances was enacted pursuant to the void provision of the charter, the ordinance is likewise void. [Arkansas-Missouri Power Corp. v. City of Kennett, 348 Mo. 1108, 156 S.W.2d 913; Ballentine v. Nester, 350 Mo. 58, 164 S.W.2d 378.]
"A constitutional or statutory provision prohibiting a change of compensation after an election or appointment during the term of an officer does not apply where, prior to such time, no salary or compensation has been fixed for the office. So a statute fixing the salary of an officer does not increase the salary during the term, where the law fixing the compensation at the time of election was invalid. Although it is the duty of a board to fix the salary before the beginning of the term, if it is not so fixed, it may be fixed thereafter. So, although it is the duty of a board to fix the salary of an office for the full term, where its order definitely limits it to a part thereof, it is not estopped from thereafter fixing the salary for the balance of the term at a different amount." 46 C.J., sec. 262, p. 1025. (See, also, Arnold v. Sullenger, 200 Cal. 632, 254 P. 267.)
Since the Municipal Assembly, acting as a county court, did not fix the salary of the Treasurer under the provisions of Sec. 13800, it follows that there was no [857] valid legislative act fixing that salary until May 22, 1939, the effective date of Laws, 1939, p. 486, which fixed the salary at $8,000.00 per annum. No salary having been lawfully fixed at a lower figure at the beginning of the term to which relator was elected, we hold the Act of May 22, 1939, did not increase his salary during the term for which he was elected, and so Section 8, Article XIV of the Constitution of Missouri was not violated.
The judgment should be affirmed. It is so ordered. All concur.