State ex rel. Hay v. Nolte

• Decision Date: 04 June 1940
• Citation: 141 S.W.2d 152,235 Mo.App. 572
• Parties: STATE EX REL. CHARLES M. HAY, CLAXTON E. ALLEN, HAROLD T. JOLLEY AND ADOLPH C. WIGET, CONSTITUTING THE BOARD OF ELECTION COMMISSIONERS OF THE CITY OF ST. LOUIS, MISSOURI, AND SILAS W. CARR, CHARLES J. DOLAN, AND IRVING I. PICKETT, ASSISTANTS OF SAID BOARD, RELATORS, v. LOUIS NOLTE, COMPTROLLER AND JOHN J. DWYER, TREASURER OF THE CITY OF ST. LOUIS, RESPECTFULLY, RESPONDENTS
• Court: Missouri Court of Appeals

141 S.W.2d 152

235 Mo.App. 572

STATE EX REL. CHARLES M. HAY, CLAXTON E. ALLEN, HAROLD T. JOLLEY AND ADOLPH C. WIGET, CONSTITUTING THE BOARD OF ELECTION COMMISSIONERS OF THE CITY OF ST. LOUIS, MISSOURI, AND SILAS W. CARR, CHARLES J. DOLAN, AND IRVING I. PICKETT, ASSISTANTS OF SAID BOARD, RELATORS, v. LOUIS NOLTE, COMPTROLLER AND JOHN J. DWYER, TREASURER OF THE CITY OF ST. LOUIS, RESPECTFULLY, RESPONDENTS

Court of Appeals of Missouri, St. Louis

June 4, 1940

ORIGINAL PROCEEDING IN MANDAMUS; ALTERNATIVE WRIT OF MANDAMUS HERETOFORE ISSUED QUASHED.

Alternative writ of mandamus quashed.

Edgar H. Wayman and George D. Chopin for respondents.

(1) (a) In construing a legislative act, the court cannot give effect to a proposed interpretation, unless such interpretation is expressed or implied in the language of the act. State ex rel. v. Gammon, 73 Mo. 425-6; Elsas v. Montgomery Elevator Co., 50 S.W.2d 130; Gendron v. Dwight Chapin & Co., 37 S.W.2d 486. (b) The language of section 81 of the 1937 Election Law, providing for compensation of additional assistants to the Board of Election Commissioners is not susceptible of construction urged by relators. Mandeville v. College of City of N. Y., 188 N.Y.S 656; McQuillin, Municipal Corporations, par. 534; Robinson v. Dunn, 77 Cal. 473; State ex rel. v. Holliday, 61 Mo. 229; Scraggs v. Scarborough, 160 S.E. 599; Doyle v. N. Y., 132 N.Y.S. 774; Early County v. Powell, 94 Ga. 680, 20 S.E. 10; Cane v. Mayor, 34 N.Y.S. 675; Thompson v. Phillips, 12 Ohio St. 617; Dane v. Smith, 54 Ala. 47; Cowdin v. Huff, 10 Ind. 83. (2) In construing statutes, courts will always avoid an unreasonable interpretation where a reasonable one can be adopted. State ex rel. v. Ry., 114 S.W. 956, 215 Mo. 479; Lamar Water Co. v. Lamar, 39 S.W. 768, 140 Mo. 145; State ex rel. v. Pub. Serv. Comm., 34 S.W.2d 486; Bragg City Dist. v. Johnson, 20 S.W.2d 22; Straughn v. Meyer, 187 S.W. 1159, 268 Mo. 580.

Douglas W. Robert for relators.

(1) This court has jurisdiction of this proceeding. Mo. Constitution, Art. XV, sec. 12; State ex rel. v. Reynolds, 275 Mo. 113; State to use of Nee v. Gorsuch, 303 Mo. 295; Dietrich v. Brickey, 327 Mo. 189; Sec. 1914, R. S. Mo. 1922; Supreme Court Rule No. 32. (2) Cane v. Mayor, 34 N.Y.S. 675; Thompson v. Phillips, 12 Ohio St. 617; Dane v. Smith, 54 Ala. 47; Cowdin v. Huff, 10 Ind. 83. Holt v. Rea, 330 Mo. 1237; State ex rel. Columbia Bank v. Davis, 314 Mo. 373, 284 S.W. 464; Smith v. Equitable Life Soc., 107 S.W.2d 191; Springfield Gro. Co. v. Walton, 95 Mo.App. 526; Duff v. Karr, 91 Mo.App. 16; San Marcos Academy v. Burgess (Tex.), 292 S.W. 626.

BENNICK, C. Hughes, P. J., and Becker and McCullen, JJ., concur.

OPINION

Mandamus.

BENNICK C.

This is an original proceeding in mandamus, whereby relators, the members of the Board of Election Commissioners of the City of St. Louis and three of their duly appointed additional assistants, seek to have the court order and direct that respondents, the Comptroller and Treasurer, respectively, of the City of St. Louis, shall issue unqualified warrants for, and pay to, such three additional assistants, the amounts of salaries or compensation alleged to be due them as specified in certain pay rolls which have heretofore been prepared and certified by the board.

The whole controversy turns upon the interpretation of section 81 (Laws 1937, p. 276) of an act passed by the Fifty-ninth General Assembly (Laws 1937, p. 235), providing for permanent registration of voters and for the holding of elections in all cities of this State of 600,000 or more inhabitants. The act provides, among other things, for the creation of a Board of Election Commissioners for such cities and for the appointment of the board's assistants permanent and otherwise; and then, in Section 81, makes provision for their salaries or compensation, as follows:

"The salaries of the Election Commissioners and assistants shall be paid out half by any such City and one-half by the County in which such City is located, or if such City is not within a county, then such salaries shall be paid in full by such City. The members of such Board shall receive a salary of three thousand ($ 3,000) dollars per year each, payable monthly; the Chief Clerk shall receive a salary of three thousand ($ 3,000) dollars per year payable monthly; other assistants not exceeding seven in number, shall each receive salaries as the Board may determine, not to exceed twenty-four hundred ($ 2400) dollars per year, payable monthly, and all additional assistants, if any, shall receive such salaries as the Board may determine, not to exceed six ($ 6) dollars per day. Precinct judges and clerks shall receive as pay six ($ 6) dollars for each day or part of day while on duty, except pay shall be allowed for those days mentioned in this Act."

The question in issue, incidentally, is whether, under the above section of the act, additional assistants employed by the board are to be paid on the basis of calendar days over the total period of time employed, as relators contend, or whether, on the contrary, they are to be paid on a per diem basis for each day on which they actually perform services, which is the position taken by respondents.

The facts are that at a meeting of the Board of Election Commissioners on February 1, 1940, the compensation of the three additional assistants in question was fixed, "for added responsibilities and duties," at the rate of $ 6 "per calendar day," effective from and after the date of the meeting, and subject to termination by the board.

On February 15, 1940, the semi-monthly pay roll for the assistants employed by the board was prepared and certified to the respondent Comptroller, which pay roll, as regards the three additional assistants in question, showed that Carr and Dolan were each entitled to the sum of $ 90 for fifteen calendar days at the rate of $ 6 a day, and that Pickett was entitled to the sum of $ 84 for fourteen calendar days at the rate of $ 6 a day. A warrant was thereupon prepared by the comptroller's office for the total amount of the pay roll, but before delivering the same to the respondent Treasurer, the Comptroller made notations opposite the names of such three additional assistants to the effect that their compensation should not be paid, and in obedience to such notations, the Treasurer refused to pay the same.

On February 29, 1940, the pay roll was again prepared by the board, showing each of the three additional assistants entitled to the sum of $ 84 for fourteen calendar days at the rate of $ 6 a day, and again, in obedience to identical notations made by the Comptroller, the Treasurer refused to pay the same.

Thereafter this proceeding was instituted to have a judicial interpretation of section 81, supra, insofar as it provides that "all additional assistants, if any, shall receive such salaries as the Board may determine, not to exceed six ($ 6) dollars per day." If such language is to be interpreted to mean that additional assistants employed by the board are to be paid on a calendar basis over the total period of time employed, irrespective of the intervention of Sundays, legal holidays, and other days on which, for one reason or another, no services may be rendered, then the peremptory writ should issue; but if it is to be taken as providing for the payment of additional assistants upon a per diem basis for only those days on which services are actually performed, then respondents Comptroller and Treasurer are correct in their position, and the peremptory writ should be denied.

Under the old law, which the Act of 1937 superseded, it was provided (Sec. 10654, R. S. Mo. 1929 [Mo. Stat. Ann., sec. 10654, p. 3919]) that "all additional assistants, if any, shall receive not to exceed six dollars per day for the time actually employed." This language was very definite, and concededly left no room for doubt but that additional assistants employed by the board were to be paid on a per diem basis, that is, for only those days on which services were actually performed.

Relators argue, therefore, that when the Legislature, in making provision for the compensation of additional assistants employed under the new law, omitted from the act the qualifying phrase, "for the time actually employed," which had appeared in the old law, it must have done so with the intent that additional assistants were no longer to be limited to compensation for only those days on which services were actually performed, but that thenceforth they were to be put in the category of salaried employees, whose compensation would be paid over the total period of calendar days employed, though restricted to a maximum of $ 6 a day so far as the basic rate of pay was concerned.

Respondents insist, on the other hand, that the new law does not, in terms, effect any change in the status of additional assistants as mere per diem employees, and that the language used by the Legislature, even without the inclusion of the phrase, "for the time...