State ex rel. Igoe v. Bradford

• Decision Date: 30 December 1980
• Docket Number: No. WD,WD
• Citation: 611 S.W.2d 343
• Parties: STATE of Missouri ex rel. John R. IGOE, Chairman, Labor and Industrial Relations Commission; George E. Taff, Member, Labor and Industrial Relations Commission; Herbert L. Ford, Member, Labor and Industrial Relations Commission, Respondents, v. Stephen C. BRADFORD, Commissioner, Office of Administration, State of Missouri, Appellant. 31397.
• Court: Missouri Court of Appeals

Page 343

611 S.W.2d 343

STATE of Missouri ex rel. John R. IGOE, Chairman, Labor and Industrial Relations Commission; George E. Taff, Member Labor and Industrial Relations Commission; Herbert L. Ford Member, Labor and Industrial Relations Commission, Respondents, v. Stephen C. BRADFORD, Commissioner, Office of Administration State of Missouri, Appellant.

No. WD 31397.

Missouri Court of Appeals, Western District.

Dec. 30, 1980.

Motion for Rehearing and/or Transfer Denied Feb. 2, 1981.

John Ashcroft, Atty. Gen., Michael H. Finkelstein, Asst. Atty. Gen., Jefferson City, for appellant.

Charles B. Fain, Jefferson City, for respondents.

Before CLARK, P. J., and DIXON and SOMERVILLE, JJ.

CLARK, Presiding Judge.

This controversy was generated when appellant, Commissioner of the Office of Administration of Missouri, ordered warrants for payment of respondents' salary in September 1979 reduced to the monthly equivalent of $28,000 per year. Proceeding in mandamus, respondents, the commissioners of the Labor and Industrial Relations Commission of Missouri, sought the court's writ to compel payment of their salary at the annual rate of $40,000. The circuit court issued its alternative writ and the pleadings thereafter filed framed the issue as a contest of the amount of salary respondents are entitled to receive under statutes applicable to their office. Appellant also filed a counterclaim asking judgment against the commissioners for repayment of alleged salary overdisbursements between January 1978 and August 1979 when the commissioners were paid at the $40,000 annual figure.

The circuit court ordered the alternative writ made peremptory, made no disposition of the counterclaim and entered judgment with findings and conclusions. The Commissioner of Administration appeals.

The facts of this case are not in dispute. The sole question is the interpretation to be given § 8.1 of the Omnibus State Reorganization Act of 1974 as amended in 1977 by House Bill 841 (§ 8.1, Appendix B, RSMo 1978). Respondents contend their salary was thereby increased from $28,000 annually to $40,000 and the circuit court so found. Appellant argues that the trial court erred in relying on extraneous evidence to construe a statute which is unambiguous, and further contends that respondents were, in any event, precluded by Art. VII, § 13 of the Missouri Constitution from an increase in compensation during their term of office. We agree and reverse.

Prior to January 1, 1978, members of the Labor and Industrial Relations Commission received compensation at the rate of $28,000 annually and each of respondents was so paid to that date. From January 1978 to September 1979, however, respondents' salary was paid at the increased rate of $3333.33 monthly or $40,000 annually, presumably in reliance on the amendment to § 8 of the 1974 Reorganization Act adopted by the general assembly in 1977 effective January 1, 1978. The increment of $12,000 per year to each commissioner's salary was funded by an appropriation from general revenue commencing in 1978.

In August of 1979, appellant Bradford apparently entertained some doubt as to the effect of the 1977 amendment on the salaries of respondent commissioners and he therefore requested an opinion from the attorney general as to the correct statutory salary then effective. The attorney general responded that total compensation for members of the Labor and Industrial Relations Commission remained at $28,000 annually and had not been increased by the 1977 act of the legislature. Respondents' salary was thereupon reduced as of September 1979 to the former rate in effect before January 1978 and this suit followed. At issue is the entitlement of respondents to salary at an increased rate commencing January 1, 1978 and, if they be found not entitled to the salary escalation, their obligation to repay excess sums overpaid from January 1978 through their respective terms in office or to September 1979. ¹

Initially, respondents have raised the issue of jurisdiction, challenging entitlement of this court to entertain the appeal on the notice of appeal filed by the attorney general. The question arises on the following assertion of facts. Respondent below and the nominal appellant here is the Commissioner of Administration of Missouri, Bradford, against whom respondents sought mandamus to compel performance of an official ministerial act issuance of warrants on funds appropriated by the general assembly for respondents' salary. Presumably at Bradford's request, the attorney general undertook defense of the mandamus action. The notice of appeal to this court and proceedings here to date have been conducted on Bradford's behalf by the attorney general.

Respondents contend that on the day following rendition of the circuit court judgment favorable to their claims, Bradford instructed the attorney general to pursue no appeal of that judgment because he was satisfied with the result. Respondents therefore argue that Bradford cannot be an appellant here contrary to his express instruction to his counsel, that the attorney general is not a party to the litigation and has no independent standing to prosecute the appeal and that the cause is therefore mooted for want of an aggrieved party.

Respondents' contention as to any position which Bradford may have adopted regarding this appeal and the consequences of a disagreement between Bradford and the attorney general are not before the court because there is no record confirming respondents' assertion. Respondents' brief reproduces a copy of a letter from Bradford to the attorney general containing his instruction that no appeal be taken, but the document appears nowhere else in the court's file and there is no record of any other action taken by Bradford to enforce his request or to disassociate himself from the appellate proceedings. Respondents assume that a viable issue on this account is raised, but issues may not be presented based solely on matters appearing in a party's brief and neither in evidence nor in the transcript. Warren v. Drake, 570 S.W.2d 803, 807 (Mo.App.1978); City of Joplin v. Village of Shoal Creek Drive, 434 S.W.2d 25, 28-29 (Mo.App.1968).

The attorney general in his briefs notes the above deficiency in the record but does not take exception to the claim that he was, in effect, directed by Bradford not to appeal the circuit court judgment. This contention by respondents that the circuit court judgment is insulated from appellate review by the apparent cooperative acquiescence of their nominal opponent in a result favoring respondents' claim is of significant dimension. To dispel any doubt as to the validity of the decisional process in the case, we therefore consider the point ex gratia.

Beyond dispute, Bradford appears in this litigation as a party solely because he occupies an official position, state commissioner of administration. Respondents in their action seek to enforce performance by Bradford of his official duty to order disbursement of state monies appropriated by the legislature for salary. The funds at issue are from the state treasury and it is therefore the state which gains or loses by the result in the case. No claim is made against Bradford personally. To the extent that respondents have stated a cause of action against Bradford in his official capacity, the action is one against the State of Missouri. Gas Service Co. v. Morris, 353 S.W.2d 645 (Mo.1962). ²

Sections 27.050 and 27.060, RSMo 1978 confer authority on the attorney general as to litigation involving the state. By these statutes, the attorney general manages all appeals in cases where the state is a party and the attorney general is charged with the duty to enforce the rights of the state. It is for the attorney general to decide where and how to litigate issues involving public rights and duties and to prevent injury to the public welfare. State ex rel. Taylor v. Wade, 360 Mo. 895, 231 S.W.2d 179 (banc 1950). Bradford was and is no more than a nominal party as representative of the state by reason of the office he holds. The attorney general and not Bradford had the responsibility and the authority to accept the decision of the circuit court or to seek review by appeal. Respondents' contention that Bradford could superintend and direct the course of the litigation is without merit. The cause is properly before this court, albeit without the active participation of Bradford.

Considering now the issue in contest, the amount of compensation lawfully payable to commissioners of the Labor and Industrial Relations Commission after January 1, 1978, appellant challenges first the conclusion of the trial court that amended § 8.1 of the Reorganization Act is ambiguous and thus amenable to judicial construction. As noted above, the vehicle of a petition in mandamus does not ordinarily serve to resolve issues centered on an ambiguous statute because by definition the right to be enforced in mandamus must be clear and unequivocal. The writ in mandamus does not issue except where the ministerial duty to be coerced is simple and definite arising under conditions admitted or proved and imposed by law. State ex rel. Phillip v. Public School Retirement System of City of St. Louis, 364 Mo. 395, 262 S.W.2d 569 (banc 1953).

The parties here appear to treat this case as one for declaratory judgment. In respect to interpretation of the statute, the issue has been fully briefed and argued and the form of mandamus presents no obstacle to final adjudication of that question. Certainly the respondents are concerned for various reasons that the issue be decided without resort to a new action in different form. Under these particular circumstances and without any inference that sanction be given to mandamus for resolution of controverted claims, the case will be decided on the merits.

Some history as to previous amounts and sources of compensation for commissioners occupying offices...