Kirby v. Nolte

• Decision Date: 25 July 1942
• Docket Number: 38082,38083
• Citation: 164 S.W.2d 1,349 Mo. 1015
• Parties: Daniel N. Kirby, Luther Ely Smith and Paul J. Kaveney, as Members of and Constituting and Composing the Civil Service Commission of the City of St. Louis, Appellants-Respondents, v. Louis Nolte, as Comptroller of the City of St. Louis, Appellant-Respondent, and the City of St. Louis, Respondent
• Court: Missouri Supreme Court

164 S.W.2d 1

349 Mo. 1015

Daniel N. Kirby, Luther Ely Smith and Paul J. Kaveney, as Members of and Constituting and Composing the Civil Service Commission of the City of St. Louis, Appellants-Respondents, v. Louis Nolte, as Comptroller of the City of St. Louis, Appellant-Respondent, and the City of St. Louis, Respondent

Nos. 38082, 38083

Supreme Court of Missouri

July 25, 1942

Appeal from Circuit Court of City of St. Louis; Hon. Robert L Aronson, Judge.

Reversed and remanded.

Julius T. Muench for Louis Nolte, as Comptroller of St. Louis appellant-respondent.

(1) The Charter of the City of St. Louis, and any Amendments thereto must at all times be in harmony with and subject to the Constitution and laws of Missouri. Constitution of Missouri, Article IX, Secs. 20, 22, 23; State ex inf. v. Lindell Ry. Co., 151 Mo. 162. (a) All courts in this State are required to take judicial notice of the Charter. Constitution of Missouri, Article IX, Section 21; Walsh v. Ry. Co., 102 Mo. 589; St. Louis v. Lang, 131 Mo. 412. (2) The Charter adopted in 1914 provides "a complete plan for the government of the City in all its departments." Constitution of Missouri, Art. IX, Secs. 20, 22, 23; Charter of the City of St. Louis, 1914; State ex rel. v. Schramm, 272 Mo. 541. (3) The Charter of St. Louis confers on the Comptroller of the City sweeping powers for the control and the protection of the City's credit and finances. Charter of the City of St. Louis: Art. II, Sec. 2; Article XV, Sections 1, 2, 3, 7, 15, 16, 17, 21, 24, 25, 28, 29; Art. XVI, Secs. 1, 3; Art. XXI, Sec. 8; Art. XXIII, Secs. 1, 7, 8; Art. XXIV, Sec. 5; Art. XXV, Secs. 4, 5, 9, 10. (4) Under the provisions of the Charter Amendment, it is clearly the duty of the Comptroller, as chief fiscal officer of the City, to determine whether a person has been employed contrary to the provisions of the Civil Service Amendment (or of any Constitutional provision or State law, to which the same is subject), and to refuse to sign or countersign any contract, or to issue any warrant for the payment of the person so unlawfully employed. St. Louis Charter, Amended Art. XVIII, Sec. 13; St. Louis Charter, Art. XV, Sec. 2; Art. XXV, Sec. 9. (5) Under an express provision of the Charter of the City of St. Louis, "all funds remaining unexpended and not appropriated by special ordinance for a specific purpose," must, at the end of each fiscal year, immediately preceding the second Tuesday in April of that year, revert to the fund or funds in the City Treasury from which the appropriation was made. Charter of the City of St. Louis: Art. XVI, Secs. 7, 8; Art. XVIII, as amended, Sec. 4 (d). (6) The provision of the State Constitution that "no person shall be elected or appointed to any office in this State, civil or military, who is not a citizen of the United States, and who shall not have resided in this State one year next preceding his election or appointment," applies as well to officers of a municipality, as it does to those holding office directly under the State government. Constitution of Missouri, Art. VIII, Sec. 10; State ex inf. v. Vallins, 140 Mo. 523, dissenting opinion, l. c. 537; State ex rel. v. Valle, 41 Mo. 29; State ex inf. v. Lund, 167 Mo. 228; People v. McCormick, 261 Ill. 413; McClendon v. Bd. of Health, 141 Ark. 114, 216 S.W. 289; Lexington v. Thompson, 61 S.W.2d 1092; Alvey v. Brigham, 286 Ky. 610, 150 S.W.2d 935, 135 A. L. R. 1024; Darling v. Brunson, Darling v. Hoole, 94 S.C. 207; State v. Sheldon, 29 Wyo. 233, 213 P. 92; Monette v. State, Thompson v. State, 44 So. 989; State v. Hostetter, 137 Mo. 636, 39 S.W. 270. (7) Under the Amendment to the St. Louis Charter, adopted September 16, 1941, the Director of Personnel of the City of St. Louis is a public officer, within the meaning of Section 10 of Article VIII of the State Constitution. State ex rel. v. Bode, 342 Mo. 162, 113 S.W.2d 805; Langston v. Howell County, 79 S.W.2d 99; State ex rel. v. Truman, 64 S.W.2d 105; State ex rel. v. Valle, 41 Mo. 30; Hastings v. Jasper County, 282 S.W. 700; State v. Bus, 135 Mo. 325; Gracey v. St. Louis, 213 Mo. 384, 111 S.W. 1159; State v. May, 106 Mo. 488; Throop v. Langdon, 40 Mich. 682; State v. Maroney, 191 Mo. 531, 90 S.W. 141; State v. Gray, 91 Mo.App. 438; Alvey v. Brigham, 286 Ky. 610, 135 A. L. R. 1024; 46 C. J. 924.

Charles P. Williams for Daniel N. Kirby et al., constituting the Civil Service Commission of St. Louis, respondents-appellants.

(1) The Civil Service Commission is vested with important public duties, in the performance of which it is not subject to the direction of the Comptroller. (2) The general rule is that, where a grant of power is given, all the means necessary to effectuate the grant are given also. State ex rel. Ragsdale v. Walker, 68 Mo.App. 110; State ex rel. Reid v. Walbridge, 119 Mo. 383, 24 S.W. 457; Ex parte Marmaduke, 91 Mo. 228, 4 S.W. 91; State ex rel. Bybee v. Hackmann, 276 Mo. 110, 207 S.W. 64; State ex inf. McKittrick v. Wymore, 345 Mo. 169, 132 S.W.2d 979. (3) Where the particular means are not prescribed, the body to whom the power is granted, and upon whom the duty is conferred, may select the means. McCulloch v. Maryland, 4 Wheat. l. c. 409; State ex rel. Hunt v. Hildebrant, 93 Ohio St. 1, 112 N.E. 138; State ex rel. Hartley v. Clausen, 150 Wash. 20, 272 P. 22; Hannibal & St. Jo. Rd. Co. v. Marion County, 36 Mo. 294; Walker v. Linn County, 72 Mo. 650. (4) The asserted dominion of the Comptroller is not well founded. Finding 1 of the decree below is correct. (5) For the same considerations, finding 3 of the decree below is correct. (6) For the same considerations, finding 4 of the decree below is correct. (7) The controversy stated respecting the examination and certification of nonresident applicants for the directorship. (8) The constitutional provision Sec. 10, Art. VIII analyzed and discussed. Boswell v. Powell, 43 S.W.2d 495; Dorsey v. Vaughan, 5 La. Ann. 153; State v. Wilmington, 3 Harrington, 294; Hood v. Dahlgren, 6 La. Ann. 175; State v. Taylor, 44 La. Ann. 783; State v. Phenix, 134 La. Ann. 329; State v. Platt, 44 Ind. 401; Lang v. Rose, 64 S.E. 84. Restrictions as to the choice of officers should be strictly construed. State ex inf. v. Heath, 345 Mo. 226, 132 S.W.2d 1001; State ex inf. v. Moore, 152 S.W.2d 86; Gilbert v. Breithaupt, 104 P.2d 183; McGinnis v. Cossad, 18 S.W.2d 988; Howton v. Morrow, 106 S.W.2d 81; Gazen v. Heery, 187 S.E. 371; Carter v. Commission, 93 P.2d 140. (9) No ruling in Missouri as to applicability of constitutional restriction exists; but two judges refer to it. State ex rel. v. Hostetter, 137 Mo. 636, 39 S.W. 270; State ex inf. v. Vallins, 140 Mo. 523, 41 S.W. 887. (10) Whether the director is an officer. State ex inf. McKittrick v. Bode, 342 Mo. 162, 113 S.W.2d 805, l. c. 806; State ex rel. Landis v. Board of Commissioners, 95 Ohio St. 157, 115 N.E. 919; State ex rel. Pickett v. Truman, 33 Mo. 1018, 64 S.W.2d 105. (11) The court erred in holding and decreeing that notwithstanding the provisions of Section 4 (d) of the Charter Amendment, any balance left unexpended out of the appropriations made by the Mayor and Board of Aldermen for the purposes of the Civil Service Commission, at the close of each fiscal year, must revert and lapse back into the City Treasury, as held to be provided by Section 7 of Article XVI of the City Charter.

Ellison, C. J. Clark, Tipton and Leedy, JJ., concur; Douglas and Hays, JJ., concur in parts 1, 2 and 4, but dissent as to part 3 in separate opinion of Douglas, J.; Gantt, J., not sitting.

OPINION

ELLISON

These are cross-appeals from a declaratory judgment of the circuit court of the City of St. Louis, construing certain provisions of the new Article XVIII of the City Charter, which was adopted at a special election on September 16, 1941. The Article purposes "to provide a modern and comprehensive system of personnel administration" with civil service regulations designed to classify all positions; measure the fitness of the occupants thereof; evaluate their services and pay them accordingly: and to provide indefinite (long time) tenure of employment and advancement on a merit basis, with retirement benefits. All of this will be under a Department of Personnel, headed by a Director of Personnel, with a Civil Service Commission and such other employees as may be needed. The Director must be selected, the rules and plans made, ordinances recommended, and the framework of the so-called "Merit Plan" set up within one year -- by September 15, 1942. This important preliminary work is the task of the plaintiff members of the Civil Service Commission, hereinafter called the Commissioners. They have come into controversy with the defendant City Comptroller over the construction of certain provisions of the new Article as applied to phases of their work. Four questions have been presented for judicial solution.

1. Under Sec. 7(e) of the new Article, the Civil Service Commission must hold a competitive examination for the position of Director of Personnel, and certify the eligibles emerging therefrom to the Mayor, who, under Sec. 8 of the Article, shall appoint the Director from the three eligibles standing highest on such certification. Under Sec. 8 he must be an expert and need not be a resident of the City of St. Louis when examined and appointed. The same section further provides that in preparing for said examination the Commission "shall secure such information and assistance as may be practicable in formulating the fitness tests for Director and rating the results from persons experienced in public personnel administration." The Commissioners' petition states they propose to obtain this information, assistance and advice from recognized nonresident experts; and asserts their discretionary...