State ex rel. Kane v. Johnson

• Decision Date: 12 June 1894
• Parties: The State ex rel. Kane v. Johnson, Comptroller
• Court: Missouri Supreme Court

27 S.W. 399

123 Mo. 43

The State ex rel. Kane v. Johnson, Comptroller

Supreme Court of Missouri, Second Division

June 12, 1894

Peremptory writ awarded.

Willard P. Hall and Vinton Pike for relator.

(1) The position taken by the respondent is that the increase in the relator's salary made by the ordinance of 1893 is void because it is prohibited by section 8 of article 14 of the constitution of this state. That section reads as follows "The compensation or fees of no state, county, or municipal officer shall be increased during his term of office; nor shall the term of any office be extended for a longer period than that for which such officer was elected or appointed." (2) It is, of course, conceded that the relator is a public officer in the meaning of the general definition of a public officer. The relator performs public duties, and offices and functions of an important character. The question in this case is: Is the relator an officer within the meaning of that section of the constitution? a. No officer is included within the provisions of that section unless his office has a fixed and definite term established by law. This will not be controverted by the other side, and is made clear by the very words of the section. b. The relator's office is not for a fixed or definite term, but is during the pleasure of the common council of the city. 1 R. S., sec. 1434; Mechem on Public Offices, sec. 445, and cases cited in note 1; People ex rel. v. Robb, 27 N.E. 267; State ex rel. v. Police Com., 14 Mo.App. 297, loc cit. 302.

B. R Vineyard for respondent.

(1) The relator is an officer of the city as contradistinguished from a mere employee or contractor. State ex rel. v. May, 106 Mo. 505; United States v. Maurice, 2 Brock, 103; Throop v. Langdon, 40 Mich. 682; Cooley on Principles of Constitutional Law, 303; State ex rel. v. Valle, 41 Mo. 29; Head v. Curators, 47 Mo. 220; Thornton v. Railroad, 42 Mo.App. 58; State v. Wilson, 29 Ohio St. 347; Shelby v. Alcorn, 36 Miss. 289. (2) That relator is not removable from office at the pleasure or caprice of the common council, is clear from the decision of this court in State ex rel. v. St. Louis, 90 Mo. 19. See, also, to same effect State v. Brice, 7 Ohio St. (part 2), 82; Field v. Commonwealth, 32 Pa. 478; Ham v. Police Board, 142 Mass. 90; Mead v. Treasurer, 36 Mich. 416. (3) Where no term is declared, the constitutional limitation of four years will fix the limit of the term. State, etc., v. Police Com'rs, 14 Mo.App. 308; S. C., 88 Mo. 144; Smith v. City, 54 Conn. 174. (4) Relator falls within the constitutional inhibition against increasing a salary during the term of the office. Const., art. 14, sec. 8. A public officer is not entitled to compensation as a matter of contract, but as an incident to his office, and only under the provision therefor fixed by law. Gammon v. Lafayette County, 76 Mo. 675; Williams v. Chariton County, 85 Mo. 645. Relator's conduct in defending the Ransom suit concludes him in this proceeding. Conger v. Chilcote, 42 Iowa 18; Landis v. Hamilton, 77 Mo. 554; Strong v. Phoenix Ins. Co., 62 Mo. 295; State v. Coste, 36 Mo. 438; Wood v. Ensel, 63 Mo. 193; Stoddard v. Thompson, 31 Iowa 80; Hoyt v. Greene, 33 Mo.App. 211; Palmer v. Hayes, 112 Ind. 289.

OPINION

Mandamus.

Burgess J.

On January 15, 1894, an alternative writ of mandamus issued in this cause against respondent, comptroller of St. Joseph, wherein it is alleged that "St. Joseph has been a city of the second class since April, 1885; that respondent is the comptroller of said city, and O. M. Gilmer, auditor; that the city has established a fire department, pursuant to the authority of the general law, which consists of a chief engineer, and assistant chief and sufficient men to man and operate the fire engines and other machinery and apparatus used for extinguishment of fires; that relator was appointed, by the common council of said city, chief engineer of said fire department, and has continued in that position until now; that at the time of his appointment his salary was fixed by ordinance at $ 1,200 per annum, which has been gradually and periodically raised; for the year beginning April, 1893, it was raised to $ 2,100 per annum, payable in monthly installments of $ 175 by warrants drawn by the auditor on the treasury, and countersigned by the respondent comptroller; that the money is in the treasury appropriated to the payment of said salary; that at the end of each month warrants have been drawn for said salary at $ 175 per month by the auditor, which have been presented to the respondent for his countersignature, who refused to countersign on the ground that relator is an officer within the meaning of the constitutional prohibition against increase of official salaries during the term of an incumbent, and that relator is 'holding over' the term of his appointment made in 1886, 'whereas the relator is not an officer within the meaning of the law prohibiting increase of salary during the term of office but * * * is an employee of said city of St. Joseph, for no fixed term or stated period, but holding his position during the pleasure of the common council of said city, and is removable at their will; that the exercise of such power of appointment and removal is necessary to the maintenance of discipline, and to obtain the degree of efficiency required in said departments, and that the respondent's willful and wrongful refusal to countersign the warrants drawn as aforesaid, to pay the salary of the chief engineer aforesaid, is detrimental to the public interests, as well as a wrong to relator.'"

The passage of the ordinance before the beginning of the current fiscal year fixing relator's salary is not admitted, but the fact is stipulated for the purpose of relator's motion, and a copy of the ordinance is set forth in the stipulation on file. It is also stipulated that the city has passed ordinances appropriating out of the general fund money to pay the salaries due to its officers and employees.

The return sets forth certain ordinances of the city relating to the qualifications of the chief engineer, and providing that he shall hold his office until removed for cause; and also an ordinance which provides that all officers of the city, unless otherwise provided by law or ordinance, shall hold their office for two years, etc. The ordinance fixing relator's salary for the years 1890 and 1892 at $ 1,800 per annum are also alleged and copies of them furnished in stipulation filed. Relator has moved for a peremptory writ upon the return of respondent and stipulations filed.

The relator is the chief of the fire department of the city of St. Joseph. He was duly appointed to such position in 1886, and has held it ever since. At the time of his appointment the salary was $ 1,200 per year, payable monthly. The salary was increased by ordinance several times during the years intervening between his appointment and April, 1893. At that time the ordinance was enacted increasing his salary from $ 1,800 to $ 2,100 per year, payable annually, and another ordinance was enacted appropriating funds to pay said increased salary.

In 1890 and 1892 the city of St. Joseph fixed the salary of the chief of the fire department at $ 1,800 per annum. The relator continued in office under his original appointment until July, 1893. He was then reappointed, and is now in office by virtue of said last appointment.

The respondent is comptroller of the city of St. Joseph, and it is his duty to countersign all warrants duly drawn by said city on its treasury. He refuses to countersign the warrants drawn in favor of relator for the latter's full salary, at the rate of $ 2,100 per year, on the following grounds:

That relator's original appointment was for a fixed term of either two or four years; that, after the expiration of said term, whether said term was for two or four years, the relator held over by virtue of his original appointment, and that during all that time the city had no authority to increase the relator's salary; that when the relator was appointed, in July, 1893, he was appointed, not for a new term then beginning, but to fill out a term which began in 1890, four years from his original appointment (and that this is so, whether the calculation be made on the basis of one term of four years, or of two terms of two years each) and that, therefore, from the time of the new appointment his salary was the salary in force at the beginning of the new term in 1890.

One ordinance of the city prescribed that the chief of the fire department should hold office until removed for cause in the mode provided by ordinance. Another ordinance provided that the term of all officers not otherwise fixed by law or ordinance should be for two years.

The question for determination is whether the increase in the salary of the relator made by the ordinance of 1893 is valid. Defendant's contention is, that the increase in the plaintiff's salary made by the ordinance of 1893, is void because it is prohibited by section 8 of article 14 of the constitution of this state, which reads as follows:

"The compensation or fees of no state, county, or municipal officers shall be increased during his term of office; nor shall the term of any office be extended for a longer period than that for which such officer was elected or appointed."

Counsel for relator concede in their brief that he is a public officer, within the meaning of the general definition of a public officer, and that he performs public duties, and offices and functions of a public character. But they contend that he is not an officer within the meaning of the section of the constitution quoted. It will be observed that this section of the constitution only embraces...