State ex rel. Kelley v. Mitchell

• Decision Date: 11 March 1980
• Docket Number: No. 61741,61741
• Parties: STATE of Missouri ex rel. John E. KELLEY, Samuel Epstein, William F. Dancy and Robert Wallerstedt, Respondents, v. James E. MITCHELL, As Acting Director of Revenue for Jackson County, Missouri, Appellant.
• Court: Missouri Supreme Court

Page 261

595 S.W.2d 261

STATE of Missouri ex rel. John E. KELLEY, Samuel Epstein William F. Dancy and Robert Wallerstedt, Respondents, v. James E. MITCHELL, As Acting Director of Revenue for Jackson County, Missouri, Appellant.

No. 61741.

Supreme Court of Missouri, En Banc.

March 11, 1980.

Fred A. Murdock, Special Asst. County Counselor, R. Jay Ingraham, County Counselor, Joe M. Williams, Deputy County Counselor, Valarie Zeeck, Asst. County Counselor, Kansas City, for respondent-appellant.

Billy S. Sparks, Robert B. Langworthy, William T. Session, Charles C. Curry, Kansas City, for relators-respondents.

Richard Webster, Elliston & Webster, Webb City, Max W. Foust, E. Wayne Taff, Morris & Foust, Kansas City, amicus curiae Bd. of Election Com'rs of Jackson County, Missouri.

WELLIVER, Judge.

Appellant, James E. Mitchell, the Acting Director of Revenue for Jackson County, Missouri, seeks relief from a peremptory writ of mandamus issued by the Circuit Court of Jackson County on October 4, 1979, commanding appellant to accept, honor and pay certain salary warrants issued by respondents, the Kansas City Board of Election Commissioners. The case arises from the same factual setting as State ex rel. Jackson County, Mo. v. Randall, Mo., 595 S.W.2d 269, decided concurrently herewith. Jurisdiction is in this Court because the case involves construction of the revenue laws of this state. State ex rel. Strong v. Cribb, 364 Mo. 1122, 273 S.W.2d 246, 247 (banc 1954); State ex rel. Hadley v. Adkins, 221 Mo. 112, 118, 119 S.W. 1091, 1093 (1909). The judgment of the trial court is reversed.

The dispute arises out of an attempt by respondents, four Commissioners of the Kansas City Board of Election Commissioners (hereinafter, the "Board"), to increase the salaries of the Board's employees. The factual and procedural history of this case is complex. In October 1979, four proceedings involving this dispute were pending, three of them involving extraordinary writs in this Court. The case presents a classic example of the waste and delay that can result when parties to a dispute treat the extraordinary writs as if they were universal remedies.

Under § 115.071, RSMo. 1978, Jackson County (hereinafter, the "County") pays one-half of the Board's salaries and Kansas City pays the other one-half. For convenience, it has been agreed that the County pays the salaries on the fifteenth of each month and Kansas City pays the salaries on the last day of each month.

The Jackson County Legislature appropriated $444,764 for use by the Board in 1979, in Ordinance No. 665, adopted December 18, 1978. The budget ordinance listed the total appropriation for the Board in a lump-sum figure, without specifying the amount authorized for salaries; however, the amount appropriated was in response to the Board's budget request to the County for 1979, which included an estimate for the salaries of the Board's employees of $174,200.

On July 17, 1979, the Board voted to increase the salaries of certain of its permanent employees. The Board notified Jackson County and the City of Kansas City of the proposed salary increases on July 19, 1979. The Board's announcement stated that the aggregate of the annual salaries paid to all Board employees prior to the adjustments was $342,270, and that the aggregate of annual salaries paid to all Board employees after the adjustment would be $372,958. The number of employees would remain at 38. The salary increases were to become effective on August 1, 1979. ¹

Jackson County officials asked the Board to postpone implementing the salary increases for thirty days, which the Board agreed to do. The City of Kansas City did not make a similar request, so the Board implemented the City portion of the increase on August 1, 1979. Because of the system used for paying Board employees, the employees first received payments at the increased salaries from the City of Kansas City on August 31, 1979. Meetings were held between Board representatives and County officials on August 28, 1979, and August 31, 1979, but these meetings failed to produce further agreement on the proposed raises.

On the evening of September 10, 1979, the Jackson County Legislature passed Resolution No. 3517 disapproving the pay raise announced by the Board because, among other reasons, the Board had not conformed to the requirements of subsection 3 of § 115.049, RSMo. 1978, that the Board give notice of such an increase at least ninety days in advance of its effective date and that the notice "include a justification of the increase." At 10:40 a. m. on September 10, 1979, appellant filed a petition for declaratory judgment in the Circuit Court of Jackson County, asking the court to declare that the salary increases proposed by the Board

are in excess of the power of the (Board) to implement without compliance with the requirements of Section 115.049.3 RSMo.; (and) to declare that it is the Plaintiff's duty to cause salary warrants (or checks) to be refused and dishonored by Jackson County if the same are presented for payment in an amount in excess of the level budgeted to each (Board employee).

The afternoon of September 11, 1979, the Board filed a petition for a writ of mandamus with the Circuit Court of Jackson County, to compel appellant, the Acting Director of Revenue of Jackson County, James E. Mitchell, to accept, honor, and pay the salary warrants which the Board planned to distribute to its employees on September 15, 1979, "or on any other subsequent date as designated by the Board."

On September 13, 1979, the Circuit Court of Jackson County issued an alternative writ of mandamus, ordering appellant to accept, honor and pay the warrants drawn by relators as prayed in relators' petition or that he appear before the court on September 14, 1979, to show cause why he should not take the actions as prayed. After a brief hearing on September 14, 1979, the court modified the alternative writ to reschedule the show cause hearing for September 26, 1979.

In the hearing on September 26, 1979, appellant Acting Director Mitchell and the Board's Principal Director, Stanley D. Rostov testified, and respondents made an offer of proof of the testimony of Professor Charles B. Blackmar. At the conclusion of the hearing, the trial court announced that it agreed with the interpretation of § 115.049, RSMo. 1978, urged by the Board, and that it did not believe that the County Budget Law prevented the Board's salary increase so long as the total which the Board spent during 1979 remained below the sum appropriated for the Board by the County for 1979.

On October 4, 1979, the court entered its Judgment of Peremptory Mandamus and Peremptory Writ of Mandamus which required appellant to honor and pay such warrants as are issued by the Board for salaries of employees. On October 9, 1979, appellant filed his motion for a new trial, alleging, among other grounds, that the court erred because the peremptory writ required appellant to perform acts in his official capacity which he had no authority to perform. The motion was supported by appellant's affidavit which set forth the procedure followed by the County to pay its obligations. Attached to appellant's affidavit was a certified copy of Ordinance No. 354 of the Jackson County Legislature, adopted February 17, 1976, which provided that all disbursements of County funds shall be made by checks signed by any two of the Director of Revenue, the county executive, and the clerk of the county legislature.

The Board filed an affidavit of Principal Director Rostov in opposition to the motion for new trial, in which Rostov stated that the Board had used salary warrants issued against the County treasury in the payment of its employees without challenge by the County since January 1, 1978 and "as far back as (affiant) has any knowledge."

On October 12, 1979, the court overruled appellant's motion for new trial, and the same day appellant filed notice of appeal to this Court with the Circuit Court of Jackson County.

Despite the fact that the instant appeal was pending, on October 15, 1979, the Board issued the salary warrants in the higher, disputed amounts. Appellant directed the Traders Bank to refuse to accept and pay warrants that reflected the salary increases.

On October 16, 1979, the Board filed in the Court of Appeals, Western District, a petition for a writ of mandamus seeking the same relief as that sought by the petition filed on September 11, 1979, and granted by the judgment of October 4, 1979, which is the subject of this appeal. That petition was dismissed without prejudice.

On October 17, 1979, the Board filed a motion with the Jackson County Circuit Court to hold appellant in contempt for failing to obey the peremptory writ. On the same day, the court found appellant in contempt of court for his refusal to follow its order of October 4, 1979, and ordered him into the custody of the Jackson County Department of Corrections to be held in the County Jail until he purged himself of the civil contempt. The court refused to set bond to stay execution of his judgment and order of October 4, 1979.

On October 22, 1979, appellant Mitchell and Jackson County filed a petition for a writ of prohibition in this Court (cause no. 61743) to prevent the trial court from enforcing its peremptory writ and to set aside the order of commitment for contempt. On the same day, October 22, 1979, the Board filed in this Court a petition for a writ of mandamus (cause no. 61744) to compel appellant and the County to honor the salary warrants containing the salary increases. The Court promptly entered a stop order against execution or enforcement of the peremptory writ of mandamus and set aside the order of commitment for contempt until further order of the Court.

On October 29, 1979, this Court denied respondent Board's petition for a writ of mandamus in cause no. 61744. The Court also ordered the appeal in this case, cause ...