Holman v. City of Macon

Citation155 Mo. App. 398,137 S.W. 16
PartiesHOLMAN v. CITY OF MACON.
Decision Date01 May 1911
CourtCourt of Appeal of Missouri (US)

Rev. St. 1909, § 9147, provides for the election of police judges. Section 9171 empowers the city council to fix the compensation of all officers of the city. A city passed an ordinance that, in addition to the fees allowed by law to the city officers, a salary of $240 per annum should be paid to the police judge from the common or other fund as may be provided for that purpose. Other ordinances relate to the assessment, collection, and disposition of the police court fees, and provide that all fees, costs, and fines in proceedings had in such court should be collected by the marshal, and paid to the police judge's court fund of the city treasury. Held, that the ordinances give no other compensation to the police judge than the salary provided.

5. APPEAL AND ERROR (§ 839) — QUESTION PRESENTED FOR REVIEW—NECESSITY OF SETTING FORTH PLEADINGS.

Where a matter is not pleaded, nor conceded by the respondent, but is only raised in appellant's brief, it cannot be considered by the appellate court.

Appeal from Circuit Court, Macon County; Nat M. Shelton, Judge.

Action by James M. Holman against the City of Macon. From a judgment for defendant, plaintiff appeals. Affirmed.

B. R. Dysart and Ed. S. Jones, for appellant. Ben Franklin and Walter C. Goodson, for respondent.

JOHNSON, J.

This is an action by the police judge of Macon, a city of the third class, for the recovery from the city of fees of the office collected and paid into the city treasury. The ordinances of the city provide a salary for the police judge of $240 per annum, and plaintiff was paid the salary during the period in controversy, but he claims that the fees of the office were made a part of his compensation by ordinance. The city contends that the fees belonged to the city, and that the only compensation allowed by ordinance to the police judge was a salary of $240 per annum. No reply was filed by plaintiff to the answer, and on motion judgment was rendered on the pleadings for the defendant on the ground that the conceded facts sustain the position of defendant.

Pertinent statutes relating to cities of the third class are as follows: "Sec. 9147 (Rev. St. 1909). Elective Officers—Terms of Office. —The following officers shall be elected by the qualified voters of the city, and shall hold their offices for two years, and until their successors are duly elected and qualified, to wit: A mayor, marshal, attorney, police judge, assessor, collector and treasurer. * * *"

"Section 9171. Compensation of Officers.— The council shall have power to fix the compensation of all the officers and employés of the city; but the salary of an officer shall not be changed during the time for which he was elected or appointed."

Pursuant to these statutes, the city on September 10, 1894, enacted an ordinance designated as Ordinance No. 5, from which we quote the following section: "Sec. 2. That in addition to the fees allowed by law and ordained to the city officers, the following annual salaries, payable in equal one-fourth installments quarterly, shall be paid to the officers hereinafter mentioned for their services, to be paid from the common or such other fund as may be provided for that purpose, to wit: mayor, a salary of $100 per annum; city clerk, a salary of $100 per annum; attorney, a salary of $100 per annum; treasurer, a salary of $100 per annum; police judge, a salary of $240 per annum; marshal, a salary of $40 per month; police, a salary of $40 per month. The collector shall collect all taxes, licenses and other moneys due the city, and shall be paid by the city a commission of three (3) per cent. on all amounts of current taxes, licenses and other moneys, collected, except saloon licenses one per cent. The assessor, such fees as may be by ordinance or resolution. Each councilman a salary of sixty dollars per year." And on October 1, 1894, the city enacted Ordinance No. 19, entitled, "An ordinance concerning the police court and regulating the proceedings therein." Sections 39 to 47, inclusive, of that ordinance, contain all of its provisions relating to the assessment, collection and disposition of the police court fees. Those sections are as follows:

"Sec. 39. Witnesses duly summoned and attending in the police court, shall be entitled to receive fifty cents each for each day's attendance before the police judge, to be taxed against the losing party; but no witness shall be allowed pay for his attendance in more than one case on the same...

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