Kemp v. City of Monett

• Decision Date: 10 June 1902
• Citation: 95 Mo. App. 452,69 S.W. 31
• Parties: KEMP v. CITY OF MONETT.
• Court: Missouri Court of Appeals

69 S.W. 31

95 Mo. A. 452

KEMP v. CITY OF MONETT.

Court of Appeals at St. Louis, Missouri.

June 10, 1902.

CITY ATTORNEY — COMPENSATION — FEES — ORDINANCE — VALIDITY.

1. Plaintiff was attorney of a city. His compensation was regulated by ordinance providing an annual salary, and for the payment of a certain fee in each case of violation of a city ordinance wherein the defendant was convicted, provided that the fee should be "taxed as costs against and be collected from defendant or defendants therein." In a number of cases defendants were convicted, but costs were not collected of them. Held, that plaintiff is not entitled to recover fees in those cases. Boucher v. City of Moberly, 74 Mo. 113, followed.

2. Under the general charter of a city of the fourth class, the ordinance described in the foregoing headnote is valid. It is not in conflict with section 5938, Rev. St. 1899.

3. Under the charter of cities of the fourth class, the board of aldermen has power to fix the compensation of all city officers, and the board may provide by ordinance that certain fees payable to the city attorney on conviction of defendants shall be contingent upon the collection of such fees from defendants.

4. The maxim, "Expressio unius est exclusio alterius," as applied to section 5938, Rev. St. 1899, does not warrant the interpretation that the city attorney is entitled to fees in every case where defendant is convicted and committed.

5. A charter is the organic law of the municipality, and an ordinance in conflict therewith is void.

(Syllabus by the Judge.)

Appeal from circuit court, Barry county; Henry C. Pepper, Judge.

Action by D. H. Kemp against the city of Monett. Judgment for defendant, and plaintiff appeals. Affirmed.

Cloud & Davis, for appellant. W. H. Maher and Jos. French, for respondent.

BARCLAY, J.

This is an action for attorney's fees. Plaintiff was city attorney of Monett, a city of the fourth class, from April, 1897, until the same month in 1900. His amended petition contains a large number of counts for various items of fees claimed under the city charter and an ordinance concerning the compensation of the city attorney. The charter of Monett declares that: "The board of aldermen shall have power to fix the compensation of all the officers and employés of the city by ordinance. But the salary of an officer shall not be changed during the time for which he was elected or appointed." Rev. St. 1899, § 5918. Another provision of the city charter is as follows: "The city shall in no event be held liable for any costs or fees to any officer of the city in any cause tried before the mayor or police judge of such city, unless the defendant be convicted and committed." Rev. St. 1899, § 5938. The ordinance on the subject is in these terms: "The city attorney shall receive a salary of one hundred dollars per year and the following fees: Ten dollars for each case where the city is a party, conducted by him to a final determination in the circuit court; second, five dollars for each case, where the city is a party, conducted by him to a final determination before a justice of the peace; third, five dollars for each case of violation of the city ordinance when the party so charged and prosecuted stands trial and is convicted of such violation, and two dollars and fifty cents where the party charged pleads guilty: provided, that in all cases prosecution for violation of ordinances said fee shall be taxed as costs against and be collected from defendant or defendants therein." The case was tried upon an agreed statement of facts, which need not be recited at large.

The difference arises in regard to the items described in the third paragraph of the ordinance. The exact contention concerns charges for prosecutions where fees of the city attorney were taxed as costs against defendants who had been convicted and committed (on a trial or a plea of guilty) for violation of ordinances, but those fees had not been collected of said defendants. Defendant contends that those items of claim on the part of plaintiff are invalid, and that he is entitled to no fees in that class of cases where those items of costs have not been collected of defendants. Plaintiff claims that it did not lie within the power of defendant to so limit its liability to plaintiff for the fees earned by him in prosecutions for violation of the ordinances where the defendants were convicted and committed. The plaintiff argues that the charter provision above quoted from section 5938, Rev. St. 1899, implies that, where a defendant in a prosecution before the mayor or police judge of...