Bates v. City of St. Louis

• Decision Date: 12 December 1899
• Parties: BATES et al. v. CITY OF ST. LOUIS et al.
• Court: Missouri Supreme Court

54 S.W. 439

153 Mo 18

BATES et al. v. CITY OF ST. LOUIS et al.

Supreme Court of Missouri, Division No. 1.

December 12, 1899.

MUNICIPAL CORPORATIONS — SALARY OF OFFICERS — DEDUCTION FOR ABSENCE.

St. Louis Charter, art. 4, § 17, providing that the president of the council, or speaker of the house of delegates, if the former be absent, shall perform the duties of mayor, in case of the absence of the mayor, and "shall receive the same compensation as the mayor" while so acting, does not intend that the salary shall accrue to the acting officer during the interim, or that any deduction for personal or private absences shall be made from the mayor's salary.

Appeal from St. Louis circuit court.

Suit by Charles E. Bates and others for injunction against the city of St. Louis and others. From a judgment sustaining a demurrer to the petition, plaintiffs appeal. Affirmed.

This is a proceeding in equity, by injunction, to restrain the city treasurer from paying the defendant Walbridge, at that time mayor of the city, his salary as such for three specified days in the month of March, 1896, during which time it is alleged in the petition he was absent from the city on business not pertaining to the business of his office as mayor, and the duties thereof were performed by the proper officers designated by the charter, who received therefor the same salary that the mayor himself would have been entitled to receive. A demurrer to the petition was sustained, and from the judgment thereon the plaintiffs appeal.

H. A. Hauessler and Chas. S. Reber, for appellants. B. Schnurmacher and Chas. C. Allen, for respondents.

BRACE, P. J. (after stating the facts).

It is contended for the appellants that the mayor of St. Louis is not entitled to the salary of his office while absent from the city on purely personal business, and this contention is based on section 17, art. 4, of the charter, which reads as follows: "The president of the council shall perform the duties of mayor whenever, and so long as, the mayor from any cause is unable to perform his official duties. If the mayor and the president of the council are both absent from the city, or otherwise disabled from performing the duties of the mayor, the speaker of the house of delegates shall for the time being discharge the duties of said office, and either of them while acting as mayor shall receive the same compensation as the mayor." It is well-settled law that "a public officer is not entitled to compensation by virtue of a contract, express or implied. The right to compensation exists, when it exists at all, as a creature of law, and as an incident to the office." "The salary belongs to him as an incident to his office, and so long as he holds it, and, when improperly withheld, he may sue for and recover it. When he does so he is entitled to its full amount, not by force of any contract, but because the law attaches it to the office." Givens v. Daviess Co., 107 Mo. 603, 17 S. W. 998; Fitzimmons v. City of Brooklyn, 102 N. Y. 536, 7 N. E. 787; State v. Walbridge (not yet officially reported) 54 S. W. 447. As is well said in Throop, Pub. Off., quoting from...