Mooney v. St. Louis County

• Decision Date: 13 February 1956
• Docket Number: No. 44780,No. 1,44780,1
• Citation: 286 S.W.2d 763
• Parties: Irma MOONEY, Administratrix of the Estate of John E. Mooney, Deceased, Lynn Meyer, George Heege and Edward E. Heil, Constituting the Board of Election Commissioners of St. Louis County, Missouri, Respondents, v. COUNTY OF ST. LOUIS, Missouri, Appellant
• Court: Missouri Supreme Court

Page 763

286 S.W.2d 763

Irma MOONEY, Administratrix of the Estate of John E. Mooney,

Deceased, Lynn Meyer, George Heege and Edward E. Heil,

Constituting the Board of Election Commissioners of St.

Louis County, Missouri, Respondents, v. COUNTY OF ST. LOUIS, Missouri, Appellant.

No. 44780.

Supreme Court of Missouri, Division No. 1.

Feb. 13, 1956.

Herbert C. Funke, St. Louis County Counselor, Clayton, for appellant.

Robert G. J. Hoester, Clayton, Robert Mass, St. Louis, of counsel, for respondents.

HOLMAN, Commissioner.

Plaintiffs, former members of the Board of Election Commissioners of St. Louis County, Missouri, instituted this action seeking to recover from defendant, St. Louis County, Missouri, the sum of $1,500 each as additional salary alleged to be due them for the period from March 18, 1952, to September 18, 1953. Plaintiff John E. Mooney died while the cause was under submission in the trial court and the administratrix of his estate was duly substituted as a plaintiff. The trial court entered a judgment for plaintiffs in the amount sued for and defendant has duly appealed therefrom. We have appellate jurisdiction as this is a civil action wherein a county is a party. Article V, Section 3, Constitution of Missouri 1945, V.A.M.S.

There is no controversy about the facts. Plaintiffs contend they are entitled to the additional salary by reason of the provisions of Senate Bill No. 254, enacted by the Sixty-Sixth General Assembly, which repealed and re-enacted Section 113.180 (all statutory references are to RSMo 1949 and V.A.M.S.). This Act contained a provision which increased the salary of the members of the Board of Election Commissioners from $2,000 to $3,000 per annum. We are not here concerned with other provisions of the Act which increased the compensation of certain employees of the Board.

The answer of defendant pleaded that plaintiff were prohibited from receiving said increase in compensation by reason of Article VII, Section 13, of the Constitution of Missouri. This section provides that 'The compensation of state, county and municipal officers shall not be increased during the term of office; nor shall the term of any officer be extended.'

Plaintiffs filed a reply to the aforesaid answer in which they pleaded that the constitutional prohibition in question did not apply to them since the Sixty-Sixth General Assembly also enacted S.B. 237 which provided new and additional duties for plaintiffs as members of said Board of Election Commissioners.

It is conceded that plaintiffs are such 'officers' as would come within the scope of the constitutional prohibition pleaded. Likewise, it is admitted that the increase in salary herein sought was for the last eighteen months of the four-year term for which plaintiffs were appointed. It therefore becomes clear that plaintiffs cannot recover in this action unless they are able to establish that the instant constitutional provision has no application herein.

Prior to the enactment and effective date of S.B. 237, the Board of Election Commissioners was required to perform certain acts and duties in regard to the registration of voters and the conduct of elections in all municipalities in St. Louis County having a population of not less than ten thousand inhabitants. Before the official certification of the 1950 census there were six such cities. In October, 1951, the census certification added three more. Senate Bill 237 amended Section 113.030 by providing that the Board should perform the duties heretofore mentioned in all cities having not less than five thousand inhabitants. The effect of this amendment was to add six more cities to those already under the jurisdiction of the Board, making a total of fifteen.

In the determination of the issue before us we will consider the legislative history of the two bills under consideration. Senate Bill 237 was introduced on May 8, 1951, and was passed by the Senate on October 9. It was passed in the House of Representatives on November 19, and approved by the Governor on December 5, 1951. Senate Bill 254 was introduced on May 15, 1951, and was passed by the Senate on October 9. The House of Representatives passed this bill on December 4, and it was approved by the Governor on December 20, 1951. Both bills were introduced by the same Senators and were referred to the same committee in the Senate. In the House, however, they were referred to different committees and were passed upon the motion of different members of that body. The effective date of each bill was March 18, 1952.

Defendant contends that the constitutional provision heretofore set out is an absolute bar to recovery by plaintiffs. It is asserted that plaintiffs have failed to establish that said provision is not applicable herein because (1) they have failed to show any legislative intent that the increase in salary was provided as compensation for the alleged new and additional duties, and (2) even if such intent is assumed the increase cannot be paid because the added duties were germane and incidental to the office and not foreign or extrinsic as required to warrant the exception.

At the outset plaintiffs contend that defendant cannot here rely on the constitutional prohibition pleaded because the question has not been properly preserved for appellate review. They cite as authority Bennett v. Cutler, Mo.Sup., 245 S.W.2d 900, City of St. Louis v. Butler Co., 358 Mo. 1221, 219 S.W.2d 372, and Red School Dist. No. 1 v. West Alton School Dist. No. 2, Mo.Sup., 159 S.W.2d 676. It has often been said that a constitutional question must be raised at the first available opportunity, presented in the motion for new trial and adequately covered in the briefs. In the instant case the constitutional bar to recovery was promptly pleaded by the defendant and has been...