State ex rel. Cullen v. Carr

• Decision Date: 03 July 1876
• Citation: 3 Mo.App. 6
• Parties: STATE OF MISSOURI, ex rel. M. R. CULLEN, Appellant, v. W. C. CARR, Auditor, etc., Respondent.
• Court: Missouri Court of Appeals

3 Mo.App. 6

STATE OF MISSOURI, ex rel. M. R. CULLEN, Appellant,

v.W. C. CARR, Auditor, etc., Respondent.

St. Louis Court of Appeals, Missouri.

Jul. 3, 1876.

Under the City Charter of 1870, where the police justice of the city of St. Louis was suspended by the mayor for misdemeanor in office, and tried and acquitted as provided by law, and another appointed to perform his functions, who acted as police justice during his suspension, the police justice was entitled, on acquittal, to receive his salary for the period during which he was suspended.

APPEAL from St. Louis Circuit Court.

Reversed, and peremptory writ of mandamus ordered to issue.

W. V. N. Bay, for appellant, cited: Donaldson v. Wood, 22 Wend. 395; Chart. of St. Louis, 73, sec. 13; Rev. Ord. 1871, pp. 73, 83, 515, 517, 519; Potter's Dwar. on Stat. 203, note 20.

Leverett Bell, for respondent, cited: Rev. Ord. 1871, art. 2, ch. 22, sec. 16; Ord. 1870, p. 73, art. 3, sec. 1; Rev. Ord. 1871, pp. 511-517, secs. 2-15, p. 519, sec. 16, p. 520, sec. 19, p. 522, sec. 1, p. 532, sec. 1.

BAKEWELL, J., delivered the opinion of the court.

This was a petition for a mandamus, to which there was a return, and a demurrer to the return, presenting the following facts:

On April 1, 1873, the relator of plaintiff was elected police justice of the city of St. Louis for the term of four years. He duly qualified, and entered at once upon the duties of his office.

The salary is $3,000 a year, as fixed by ordinance, payable monthly.

It is provided by ordinance (Rev. Ord. 15, sec. 1) that the mayor shall have power to suspend from office any elective officer who shall willfully violate any of his official obligations; such action is to be reported to the City Council, who then try the officer on charges framed by a committee of their body.

It is further provided (Rev. Ord. 519, sec. 16) that “no officer shall receive any salary during the time he shall be absent from the city without leave, or during the time he shall be suspended by the mayor for a supposed misdemeanor in office, nor until the Council shall decide the case.”

On September 12, 1874, the mayor suspended the relator from office, and reported the facts to the City Council, who, on November 11, 1874, decided the case by acquitting the relator, who was thereupon restored to office. During the period of this suspension another person acted as police justice, by appointment of the mayor, according to law, and received the salary of the office.

This is a proceeding to compel the auditor of the city to audit and draw his warrant on the city treasury in favor of relator, for his salary during the period of his suspension, although relator performed none of the duties of his office during such period, and although another person did perform those duties, and was duly paid therefor in accordance with the provisions of the ordinance in such case made.

At the time of relator's election, and ever since, the city charter of March 4, 1870, has been in force, and provides (paragraph 13, art. 3, sec. 1) that the mayor and City Council shall have power, by ordinance, to regulate and provide for the election and appointment of city officers required by charter, and to provide for their suspension or removal, and establish the salaries, fees, and compensation of all officers for their services; provided, the salary of an officer shall not be changed during the time from which he is elected or appointed.

The charter does not fix the pay, salary, or emoluments of any officer of the city, nor provide for the payment thereof, but all these matters are by this instrument remitted to the Council and mayor, to be disposed of by ordinance. The revised ordinance approved March 31, 1871, makes full provision for the compensation of every officer in the city.

Chapter 22 of this ordinance (Rev. Ord. 511) relates to city officers.

Section 2 of article 2 thereof gives the mayor the power of suspension already set forth in the very words of the law.

Section 2 of article 2 provides how a suspension shall be effected, and it is made a misdemeanor for any officer to exercise any of the duties of the office from which he shall have been suspended.

Section 3 requires the mayor, immediately upon the suspension of an officer, to appoint some person to fill the office for the time being.

Sections 4 to 15, inclusive, provide for the trial of the suspended officer, upon charges preferred before the Council.

And section 16 (Rev. Ord. 519) declares that no officer shall receive any salary during the time he shall be suspended by the mayor, nor until the Council shall decide the cause.

Section 19 (Rev. Ord. 520) provides that, during the term of suspension, the mayor shall fill temporarily the vacancy so caused.

It is also provided (p. 532, ch. 24, sec. 1) that the person officiating for the police justice shall be allowed the same salary pro rata as the police justice would be entitled to.

Chapter 24 of this ordinance relates wholly to the Police Court, and the section just quoted provides that, “in case the police justice should be absent from sickness, the salary of the person officiating in his stead shall be made chargeable to appropriations for salaries; otherwise, it shall be deducted from the salary of the police...