State ex rel. Webb v. Pigg

• Decision Date: 09 June 1952
• Docket Number: No. 43005,43005
• Parties: STATE ex rel. WEBB v. PIGG, Comptroller of Department of Revenue.
• Court: Missouri Supreme Court

Page 435

249 S.W.2d 435

363 Mo. 133

STATE ex rel. WEBB v. PIGG, Comptroller of Department of Revenue.

No. 43005.

Supreme Court of Missouri, en Banc.

June 9, 1952.

J. E. Taylor, Atty. Gen., Robert R. Welborn, Asst. Atty. Gen., for respondent.

Stone and Reid, A. P. Stone, Jr., Springfield, for relator.

DALTON, Judge.

This is an orginal proceeding in mandamus. Relator, the Clerk of the Springfield Court of Appeals, seeks to compel the Comptroller of the Department of Revenue to approve and certify for payment the unpaid remainder of relator's monthly salary claims, to wit, the additional sum of $75 per month for each and every month during the period from July 1, 1951 to December 31, 1951, inclusive, which additional sums are alleged to be due by reason of an increase in relator's salary, as ordered by the Judges of the Springfield Court of Appeals and authorized by Laws 1949, p. 236, now Section 483.240 RSMo 1949, V.A.M.S.

Respondent, acting upon an opinion of the Attorney General, has refused to approve relator's claims for such increase on the ground that relator is a 'state officer' within the meaning of Section 13, Article VII, Constitution of Missouri 1945, V.A.M.S.; and that his compensation may not be increased during his term of office. The parties agree that the cause turns on whether or not relator is a 'state officer' within the meaning of the above constitutional provision.

The facts are not in dispute. On July 1, 1946, relator was reappointed by the Springfield Court of Appeals as its clerk for a term of six years. Section 26, Article V, Constitution of Missouri, 1945; Laws 1945, p. 660. His salary was fixed by the Judges of said court at the sum of $3,600 per year, the maximum then permitted by law. Laws 1945, p. 660. Thereafter, the maximum salary payable to relator, as such clerk, was increased to $4,500 per year. Laws 1949, p. 236, now Section 483.240 RSMo 1949, V.A.M.S., effective October 14, 1949. Laws 1949, pp. 647, 648. On August 19, 1949, the Judges of the Springfield Court of Appeals fixed relator's salary, as clerk of said court, at $4,500 per year, effective from and after October 14, 1949.

In regular and approved form, from and after October 14, 1949, relator has made claim for salary at the increased rate and said claims have been approved and certified as correct by the Presiding Judge of the Springfield Court of Appeals. Sections 33.100 and 483.240 (all references are to RSMo 1949 and V.A.M.S. unless otherwise specified). Such salary claims submitted at the rate of $375 per month have been rejected and disapproved by respondent, who, without relator's consent, has changed, reduced and approved said salary claims for $300 per month.

Funds for the payment of relator's salary at the increased rate, to wit, at $375 per month from and after October 14, 1949, have been duly appropriated. 65th General Assembly, Laws 1949, p. 56, Sec. 4.110; Laws 1949, p. 210, Sec. 10.690; 66th General Assembly, House Bill No. 5, Sec. 4.290, pp. 26, 27. Unencumbered funds are presently available for the payment of the balance of relator's salary claims for the period from July 1, 1951 to December 31, 1951, inclusive. Appropriations for payment of the increased salary prior to July 1, 1951 have expired. Section 28, Article IV, Constitution of Missouri 1945.

Relator's position is that, 'in law and in fact, he is a mere ministerial officer of the Springfield Court of Appeals, the amanuensis of the court, and 'the arm of the court', by whom he is appointed, supervised, directed and controlled, and to whom he is responsible and accountable; that, as evidenced by the Missouri statutes cited in relator's petition, relator's duties are largely clerical in nature and are altogether subject to the court's supervision, direction and control; that relator is invested with none of the sovereign power of government, to be exercised by him for the benefit of the public, independently and without control of a superior power other than the law, itself; and that, under this recognized definition and test, relator is not a 'state officer."

Section 13, Article VII of the Constitution of Missouri 1945, provides: 'The compensation of state, county and municipal officers shall not be increased during the term of office; nor shall the term of any officer be extended.'

In Folk v. City of St. Louis, 250 Mo. 116, 135, 157 S.W. 71, 74, this court considered th purpose of this particular constitutional provision and said: 'It was to prevent persons while possessed of the prestige and influence of official power from using that power for their own advantage that the framers of our organic law ordained that salaries of public officers should not be increased during the terms of the persons holding such offices.'

This court has questioned the possibility of specifically defining the words, 'public office,' 'public officer', or 'state officer', but it has determined each case involving the matter in question in view of the particular facts presented and the applicable statutes and constitutional provisions. Among the matters taken into consideration are the duties to be performed, the method of performance, the end to be attained, the powers granted and, generally, the surrounding circumstances. These circumstances include tenure, oath, bond, official designation, compensation and the dignity of the position in question, but no particular fact or circumstance is considered to be conclusive. State ex inf. McKittrick v. Bode, 342 Mo. 162, 113 S.W.2d 805, 806; State ex rel. Scobee v. Meriwether, 355 Mo. 1217, 200 S.W.2d 340, 341.

In the case of State ex rel. Walker v. Bus, 135 Mo. 325, 331, 36 S.W. 636, 637, 33 L.R.A. 616, the court said: 'A public office is defined to be 'the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public.' Mechem, Pub.Off. 1. The individual who is invested with the authority and is required to perform the duties is a public officer.' And see State ex rel. Zevely v. Hackmann, 300 Mo. 59, 254 S.W. 53, 55; State ex inf. McKittrick v. Whittle, 333 Mo. 705, 63 S.W.2d 100, 102. This definition has been somewhat modified by the subsequent decisions of this court.

The parties to this action in effect concede that, under the more recent decisions of this court, a different test has been formulated and applied in reaching a conclusion as to whether or not a particular official is a 'state officer' within the meaning of the quoted constitutional provision. In order to be considered a 'state officer' within the purpose and meaning of said constitutional provision, the official in question must have been delegated a portion of the sovereign power of government to be exercised for the benefit of the public and such delegation of sovereign power must be 'substantial and independently exercised with some continuity and without control of a superior power other than the law.' Kirby v. Nolte, 349 Mo. 1015, 164 S.W.2d 1, 8; State ex rel. Scobee v. Meriwether, supra, 200 S.W.2d 340, 341; State ex inf. McKittrick v. Bode, 342 Mo. 162, 113 S.W.2d 805, 807; State ex rel. Pickett v. Truman, 333 Mo. 1018, 64 S.W.2d 105, 106.

In considering the meaning of the term 'sovereign power', and as illustrative thereof, this court has repeatedly quoted from the case of State ex rel. Landis v. Board of Commissioners of Butler County, 95 Ohio St. 157, 115 N.E. 919, 920, as follows: 'If specific statutory and independent duties are imposed upon an appointee in relation to the exercise of the police powers of the state, if the appointee is invested with independent power in the disposition of public property or with power to incur financial obligations upon the part of the county or state, if he is empowered to act in those multitudinous cases involving business or political dealings between individuals and the public, wherein the latter must necessarily act through an official agency, then such functions are a part of the sovereignty of the state.' State ex rel. Pickett v. Truman, supra, 64 S.W.2d 105, 106; State ex rel. Scobee v. Meriwether, supra, 200 S.W.2d 340, 341.

Whether or not relator has been delegated any portion of the sovereign functions of government within the aforesaid definition and the extent to which he has been invested with such 'sovereign power' to be exercised by him for the benefit of the public, Independently and without control of a superior power other than the law, can be ascertained only by a careful review of the applicable statutory and constitutional provisions.

The office in question is one recognized by the Constitution of this state. Section 26, Article V of the Constitution of Missouri 1945, provides that 'appellate and probate courts shall appoint their own clerks.' Such a clerk is a sworn officer. Section 11, Article VII, of the Constitution provides that, 'Before taking office, all civil and military officers in this state shall take and subscribe an oath or affirmation to support the Constitution of the United States and of this state, and to demean themselves faithfully in office.' (Italics ours.)

Relator has not been issued a commission by the Governor of the state, but whether relator is a 'state officer' within the meaning of Section 13, Article VII is the matter for decision here, and not whether relator is entitled to a commission by reason of Section 5, Article IV, Constitution of Missouri 1945. The mere fact of relator's failure to receive a commission is not decisive of the issues presented here.

Many sections of Chapter 483 RSMo 1949 applicable to clerks of courts of record are apparently applicable to relator. The sections referred to as applicable include Section 483.025, providing for the giving of a bond and fixing its...