Hawkins v. City of Fayette

• Decision Date: 02 September 1980
• Docket Number: No. WD 31066.,WD 31066.
• Citation: 604 S.W.2d 716
• Parties: L. C. HAWKINS, Appellant, v. CITY OF FAYETTE, Missouri, a Municipal Corporation; Jan Fellin, City Treasurer; William Ayres, Mayor; and Kenneth O'Brien, Bob Stewart, Earnest O'Dell, Helen Akins, Bill Fisher, James Shiflett and George Vaughan, past and present members of the Board of Aldermen of the City of Fayette, Missouri, Respondents.
• Court: Missouri Court of Appeals

604 S.W.2d 716

L. C. HAWKINS, Appellant, v. CITY OF FAYETTE, Missouri, a Municipal Corporation; Jan Fellin, City Treasurer; William Ayres, Mayor; and Kenneth O'Brien, Bob Stewart, Earnest O'Dell, Helen Akins, Bill Fisher, James Shiflett and George Vaughan, past and present members of the Board of Aldermen of the City of Fayette, Missouri, Respondents.

No. WD 31066.

Missouri Court of Appeals, Western District.

August 4, 1980.

Motion for Rehearing and/or Transfer Denied September 2, 1980.

COPYRIGHT MATERIAL OMITTED

Robert C. Smith, Columbia, for appellant; Smith, Lewis & Rogers, Columbia, of counsel.

W. F. Daniels, Fayette and Cullen Cline, Columbia, for respondents; Butcher, Cline & Mallory, Columbia, of counsel.

Before WASSERSTROM, C. J., Presiding, and PRITCHARD and KENNEDY, JJ.

Motion for Rehearing and/or Transfer to Supreme Court Denied September 2, 1980.

PRITCHARD, Judge.

Appellant, alleging that he is a resident of Fayette, Missouri, an owner of property therein, is entitled to vote therein, and that he is a citizen and taxpayer of said city, filed a petition for declaratory judgment asking that an ordinance of the city increasing the salary of its mayor be declared void. The trial court denied him relief.

William Ayres was first elected as mayor of the city on April 4, 1976. During his first term, the salary was $125.00 per month, plus mileage. On the same night that he took office, the city's manager resigned, effective 30 days thereafter. Ayres, feeling that it was his responsibility as mayor to do so, took over the city manager's duties, receiving therefor no additional compensation.

Ayres had been a life-long resident of Fayette, owning and operating a department store therein, from which the larger part of his income is derived. Since he was elected mayor he had been putting in 40 to 70 hours per week of his time for the city. His duties included supervising all city employees; being at the city power plant 3 to 7 times a day during installation of a new engine which went on for 6 or 7 months; supervising the electric and water utility systems; making applications for state and federal grants and making trips concerning them, assuming the lead for the city in applying for them, and reporting to the Board of Aldermen at its bi-monthly meetings on how he was progressing on grants; preparing the city budget for every year he has been mayor; participating in meetings in Jefferson City of the Mid-Missouri Council of Governments, being secretary thereof; at the direction of the Board of Aldermen, he had represented the city in these additional organizations: Chairman of the Sub-Area Council for the Health Systems Agency for 8 counties, member of the governing body of the same agency for 60 counties, incorporator of Consumer Energy Corporation Coal Gasification for 2 regions; and secretary for the not-for-profit Emergency Medical Services corporation for 16 counties.

On December 10, 1977, meeting of the Board of Aldermen, a salary of $1,000 per month was discussed, and Ayres made a statement that the job of mayor was costing him money, giving an estimate. This meeting was covered in the Fayette newspaper. The Board did not adopt an ordinance providing for $1,000 per month, but did adopt one calling for $4.00 per hour additional compensation by ordinance dated December 20, 1977.

Ayres, without opposition, was reelected to a succeeding term as mayor on April 4, 1978. After that election, but prior to a Board of Aldermen meeting called by him to be held April 10, 1978, Ayres inquired of the Attorney General whether the ordinance adopted on December 20, 1977, was valid. He was informed that the Attorney General knew of no other official in the state who was paid by the hour. Consequently, and to avoid possible litigation of the matter, Ayres called a special meeting of the Board for April 10, 1978, to see if it could get it resolved, "because I could not follow through with two more years at the time I was putting in on the job for $125.00 per month, and they knew that." That special meeting was held prior to the time Ayres took his oath of office (he being elected April 4, 1978) because he understood that official's compensation could not be increased once his term of office began. At the April 10, 1978, meeting, Ordinance No. 2.500, providing $125.00 per month for the mayor, and Ordinance No. 2.501, providing additional compensation of $4.00 per hour to the mayor, were repealed, and a new ordinance, upon the expressed desire of the Board of Aldermen to clarify the status of the compensation of the mayor, set his annual salary at $12,000 per year, payable $1,000 per month after 7:30 p. m., April 18, 1978, and by Section 4, required that the Mayor perform the following duties in addition to those prescribed by State statutes and the present ordinances: "1. Prepare the annual budget for the City of Fayette, Missouri. 2. Seek, apply for and administer Federal and/or State grants, subject to Council approval. 3. Monitor and inform Council bi-monthly of status of electrical and water utility systems, both the plants and distribution systems. 4. Day to day supervision of City employees and department heads and reporting bi-monthly to the Board of Aldermen. 5. Represent the City of Fayette and the Board of Aldermen in other miscellaneous organizations, and/or Board of Directors at the direction of the Council. 6. A commitment of 40 hours per week is expected by passage of this Ordinance."

Mo.Const. Art. VII, § 13, provides that the compensation of a municipal officer shall not be increased during the term of office, and § 79.270, RSMo 1978, provides that the salary of an officer of the city shall not be changed during the time for which he was appointed or elected. The determinative issue is whether the duties above, prescribed by the Board of Aldermen, are within those ordinarily performed by a mayor of a fourth class city, i. e., were they incidental to and germane to that office, or were they, in fact, additional duties for which the Board of Aldermen could, through passage of an ordinance, legally provide extra compensation above the regular salary of the mayor?

The City of Fayette is stipulated to be a fourth class city of this state. Its functions are governed by Chapter 79, RSMo 1978. The duties of the mayors are contained in several sections therein: § 79.110 provides that the mayor and board of aldermen shall have the care, management and control of the city and its finances; § 79.120 provides that the mayor shall have a seat in and preside over the board of aldermen, but shall have no vote except in the case of a tie, and he shall exercise a general supervision over all the officers and affairs of the city; § 79.140, he shall approve or veto bills; § 79.180 grants power to the mayor to administer oaths to witnesses; § 79.190, he shall sign commissions and appointments of elected or appointive officers of the city, and shall sign all orders, drafts and warrants drawn on the city treasury, and cause the city clerk to attest them and affix the city's seal, and to keep an accurate record in a book to be provided for that purpose; § 79.200, he shall enforce all laws and ordinances, and cause all subordinate officers to be dealt with promptly for any neglect or violation of duty; § 79.210, communicate from time to time to the board of aldermen such measures as may, in his opinion, tend to the improvement of the finances, the police, health, security, ornament, comfort and general prosperity of the city; § 79.220, the remission of fines and forfeitures, and to grant reprieves and pardons for offenses arising under the city ordinances; and § 79.230, with the consent of a majority of the board of aldermen, to appoint a treasurer, city attorney, city assessor, street commissioner and night watchman, and also special counsel to represent the city or to assist the city attorney.

It is true, as appellant argues, that if extra services which are rendered by a public officer are germane to the official duties of his office, or are merely incidental to those duties, the existence of an ordinance or contract for additional compensation is not enforceable as a general rule. Annotations, 159 A.L.R. 606, 609; 170 A.L.R. 1438 (new duties imposed on officer after taking office); 56 Am.Jur.2d Municipal Corporations, Etc., § 263, p. 317 "The general rule is that where the duties of a municipal officer have been increased by the addition of duties germane to his office, in the absence of legislation authorizing an increase in his salary such additional duties are to be performed without extra compensation." (Italics added.). Missouri follows the general rule. See Becker v. St. Francois County, 421 S.W.2d 779 (Mo.1967), quoting with approval, 159 A.L.R. 606, but in which there was no statute authorizing payment for extra services performed by a county clerk; Mooney v. County of St. Louis, 286 S.W.2d 763 (Mo.1956), where it was not specifically provided in a statute providing extra compensation that it should be for extra duties imposed by another statute, neither statute referring to the other, and no legislative intent to so compensate could be found; and State ex rel. Forsee v. Cowan et al., 284 S.W.2d 478 (Mo.1955), where it was held that a justice of peace, filling in for another who was called to the armed service, was not entitled to extra compensation as a substitute justice, there being no statute fixing extra compensation, and the extra services were germane to relator's duties as one of the justices of the township.

Respondents contend that the ordinance, although enacted after Mayor Ayres was elected, was before he took his oath of office, and therefore before his term began. The statutes speak of a term of office for two years, and that cannot be longer than the time when a successor is elected. § 79.050. The matter of when the oath of office is taken is immaterial to its term. See Edwards v. City...