State ex rel. Dwyer v. Nolte

• Decision Date: 07 June 1943
• Docket Number: 37814
• Parties: State of Missouri at the Relation of John J. Dwyer v. Louis Nolte, Comptroller of the City of St. Louis, a Municipal Corporation, Plaintiff in Error
• Court: Missouri Supreme Court

172 S.W.2d 854

351 Mo. 271

State of Missouri at the Relation of John J. Dwyer v. Louis Nolte, Comptroller of the City of St. Louis, a Municipal Corporation, Plaintiff in Error

No. 37814

Supreme Court of Missouri

June 7, 1943

Rehearing Denied July 6, 1943.

Writ of Error to Circuit Court of City of St. Louis; Hon. Robert Kirkwood, Judge.

Affirmed.

Joseph F. Holland, City Counselor, and Oliver Senti Associate City Counselor, for plaintiff in error.

(1) The compensation or fees of a state, county or municipal officer cannot be increased during his term of office. Constitution of Mo., Sec. 8, Art. XIV. (2) Prior to May 22, 1939, the relator was required by the general law of the State relating to county treasurers to perform official duties relating to the City of St. Louis as a political subdivision. State ex rel. McKittrick v. Dwyer, 343 Mo. 973, 124 S.W.2d 1173. (3) Prior to May 22, 1939, the relator was required by the ordinances of the City of St. Louis to perform official duties relating to the City of St. Louis in its corporate or municipal capacity. State ex rel. McKittrick v. Dwyer, supra. (4) The official duties which relator was required by the Act of May 22, 1939 (increasing his salary), to perform in relation to the City of St. Louis as a political subdivision are identical with those duties which he was theretofore required to perform by the general law relating to county treasurers. Art. 8, Chap. 85, R. S. 1929. (5) Prior to May 22, 1939, the relator was entitled to receive as compensation for his services as city treasurer such just and reasonable sum as the county court allowed. Sec. 12138, R. S. 1929. (6) The Board of Aldermen was authorized to perform, for the City of St. Louis, the functions of the county court. Sec. 14796, R. S. 1929. (7) The Board of Aldermen, acting as the county court, fixed the salary of relator as city treasurer at $ 5000 a year prior to his election. (8) Relator's salary was so fixed prior to his election that it could not be increased during his term of office without violating Section 8 of Article XIV of the Constitution of Missouri. Givens v. Davies County, 107 Mo. 603; State ex rel. Holmes v. Thatcher, 116 Ohio 113; Purcell v. Parks, 82 Ill. 346; McNew County Judge v. Commonwealth, to the Use, etc., 123 Ky. 115; Morgan Co. v. Fidelity & Deposit Co., 200 Ala. 690; Franklin County v. Richardson, 202 Ala. 45; Gillespie v. County Auditor, 267 Mich. 483; State Consul Publishing Co. v. Hill, 3 P.2d 525; Commonwealth v. Cooper, Treasurer, 31 D. & C. 659.

Louis B. Sher for defendant in error.

(1) Where the power is given by the Constitution of a state to fix salaries of public officers, that power remains unexhausted until the Legislature acts, but when once fixed by statute it cannot be changed during the term of the officer affected thereby. Stone v. Pryor, 45 S.W. l. c. 1056; Purcell v. Parks, 82 Ill. 356; State ex rel. Hueller v. Thompson, 316 Mo. 272. (2) Constitution of Missouri, Article IX, Section 12, provides: "The General Assembly shall, by a law uniform in its operation provide for and regulate the fees of all County officers, and for this purpose may classify the Counties by population." (3) Article IX, Section 13, of Constitution of Missouri: "The fees of no executive or ministerial officer of any County or Municipality . . . shall exceed the sum of $ 10,000.00 for any one year . . ." (4) The word "fees" in the above constitutional provisions includes salaries or compensation to county officers. State v. Riedel, 46 S.W.2d 131; Callaway County v. Henderson, 119 Mo. 32. (5) Statutes commuting fluctuating fees of officers to a fixed salary not to exceed $ 10,000 per annum are valid, and are proper legislation necessary to carry into effect Section 13 of Article IX of the Constitution. Kenefick v. St. Louis, 127 Mo. 1. (6) The Act of May 22, 1939, with an emergency clause, applicable to treasurers in cities of 600,000 or more inhabitants, carries into effect the legislative mandate of Article IX, Sections 12 and 13, and is, therefore, constitutional. (7) This new enactment definitely fixing the City Treasurer's salary at $ 8,000 per annum gives meaning and effect to the words "unless otherwise provided by law," found in Section 12138, R. S. 1929, now Sec. 13800, R. S. 1939, which delegates the power to the county court to allow the treasurer such compensation as may be deemed just and reasonable, and was within the lawful power of the Legislature to enact during the term of the city treasurer for which he was elected. (8) The provision in a constitution that no salary or compensation of any public officer shall be increased or diminished during his term of office applies only to such salaries or compensation of public officers as have been definitely fixed or prescribed by law, either by the Constitution of the State or by some statute made in pursuance thereof. Throop on Public Officers, sec. 476; Mechem on Public Officers, sec. 858; State ex rel. v. Gordon, 238 Mo. 168; Rucker v. Supervisors, 7 W.Va. 661; Harper v. Board of Commissioners, 54 Okla. 545; James v. Duffy, 140 Ky. 604, 131 S.W. 489; State v. McDowell, 19 Neb. 442. (9) The General Assembly is vested with power to reorganize the office of the city treasurer in cities of 600,000 or more inhabitants, and to fix definitely the compensation and term of the encumbent, by whom to be commissioned, and amount of bond, and therefore the incidental increase in the salary of the city treasurer, by the Act of May 22, 1939 (previously fixed by the city ordinance enacted on April 8, 1931, at $ 5000 per annum, but which did not fix such salary by express provision for the term of said officer), is not in violation of the letter or spirit of Section 8, Article XIV, of the Constitution. State ex rel. Hueller v. Thompson, Auditor, 316 Mo. 272; Stone v. Pryor, 45 S.W. l. c. 1056. (10) Section 8 of Article XIV of the Constitution applies only to those officers (1) whose salary or compensation is definitely fixed by statute prior to the enactment providing for an increase, and (2) who have been elected or appointed for a definite term of office. 46 C. J., sec. 259, p. 1024; Throop on Public Officers, section 476; Mechem's Public Office and Officers, sec. 385; State ex rel. v. Gordon, 238 Mo. 168; State ex rel. Dietrich v. Daues, 278 S.W. 430; Supervisors v. Hackett, 21 Wis. 613; Rucker v. Supervisors, 7 W.Va. 661. (11) The Charter of the City of St. Louis, Section 1, Article VIII thereof, without regard to and ignoring the General Laws of this State, providing for the periodic election of county treasurers (Section 12130, R. S. Mo. 1929 et seq., now Sec. 13789 et seq., R. S. 1939, which includes the city treasurer under the decision in State ex rel. McKittrick v. Dwyer, 124 S.W.2d 1173), expressly gave the power to the Mayor to appoint the treasurer, and by Section 24, Article XV of said Charter, undertook to fix the salary of said treasurer at $ 5000 per annum, though under Section 12138, R. S. 1929, the county court was authorized to allow him for his services such compensation as may be deemed just and reasonable. The city ordinance enacted by the Board of Aldermen on April 8, 1931, automatically followed the charter provision as to salary and fixed it at the same amount, but for no definite period of time, nor for the term of the officer elected or to be elected. (12) The county court (or in the City of St. Louis, the officers and body named in the above Act of 1877), the agency most familiar with the fiscal affairs and financial condition of the county, as well as the services required to be performed by the treasurer, is empowered to fix a just and reasonable compensation of the treasurer, which may vary in different counties and at different times in the same county. State ex rel. Dietrich v. Daues, 287 S.W. 430. (13) Section 24, Article XV, of the Charter of the City of St. Louis, fixing the salary of the city treasurer, was therefore void. (14) There is nothing on the face of the city ordinance enacted April 8, 1931, fixing the salary of the city treasurer at $ 5000, to show that the Comptroller of the City of St. Louis performed his duty previously vested in the county court and to him granted, and that he approved this ordinance in that capacity. (15) A constitutional provision prohibiting the change of compensation after an election or appointment during the term of an officer does not apply where prior to such time no salary or compensation has been fixed for that office, and so a statute fixing the salary of an officer does not increase the salary during the term where the law fixing the compensation at the time of election was invalid. Marion County Fiscal Court v. Kelly, 56 S.W. 815; Arnold v. Sullenger, 200 Cal. 632; 46 C. J., p. 1025, sec. 262. (16) In view of the language used in Section 12138, R. S. 1929 (now Section 13800, R. S. 1939) as regards the compensation of the treasurer, it has been held that the compensation of the county treasurer could be increased, changed or diminished during the incumbency of that office. Dietrich v. Brickey, 277 S.W. 615.

OPINION

Leedy, P.J.

This case has reached the writer on reassignment. In November, 1936, H.C. Menne was elected Treasurer of the City of St. Louis for a term of four years. Menne died in August, 1938, and the Mayor of St. Louis, proceeding under Section 1, Article VIII of the Charter of St. Louis appointed the relator, John J. Dwyer, Treasurer to fill the vacancy and unexpired term. In quo warranto this court held that under the "scheme" (Secs. 20-26, Art. IX, Const. of Mo.) separating the city and county, the City of St. Louis became both a political subdivision of the state and a city in its corporate capacity; that the general statutes relating to county...