State v. Brodie

• Decision Date: 09 January 1912
• Citation: 143 S.W. 69
• Parties: STATE ex rel. GREGORY v. BRODIE et al.
• Court: Missouri Court of Appeals

143 S.W. 69

STATE ex rel. GREGORY v. BRODIE et al.

Kansas City Court of Appeals. Missouri.

January 9, 1912.

Rehearing Denied February 5, 1912.

1. MUNICIPAL CORPORATIONS (§ 124) — ORDINANCES — REPEAL BY STATUTE.

An ordinance approved in 1907 provided that the officers named should be employed by the city and receive the salaries provided for their services, and allowed the mayor $5,000, and provided that the members of the upper house of the common council should receive $5 a day for each day they served while in session as aldermen, not to exceed $300 a year, with the exception of the president of the upper house, who should receive $1,800 a year, and be ex officio president of the board of public works. Kansas City Charter 1908, art. 2, § 5, fixes the compensation of each member of the city council at $5 a day or at a sum not to exceed $300 annually, and provides that no

extra compensation shall be allowed a member for serving on any committee, agency, or commission whatsoever. Article 18, § 1, provides that all ordinances in force when the charter takes effect, and not inconsistent therewith, shall remain in force until repealed by the common council, and article 4, § 29, provides that the common council at least 30 days before each city election shall fix by ordinance the salaries of all officers for the ensuing official term. Held, that article 2, § 5, of the charter, did not impliedly repeal the ordinance, not being inconsistent therewith, so that the president of the upper house of the common council continued to receive a compensation of $1,800 a year after the charter went into effect.

2. STATUTES (§ 167) — REPEAL — IMPLIED REPEAL.

A statute is impliedly repealed by the enactment of a subsequent statute revising the whole subject-matter of the former statute.

3. STATUTES (§ 161) — REPEAL — REPEALS BY IMPLICATION.

Repeals by implication are not favored, and a statute will not be construed as repealed by implication unless there is an irreconcilable conflict between the two, or the Legislature intended the later statute to take the place of the former; it not even being sufficient that the subsequent statute covers some or even all of the cases covered by the former statute, if they are merely affirmative or auxiliary.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

Mandamus by the State, on the relation of Robert L. Gregory, against A. F. Brodie and others. From a judgment for plaintiff, defendants appeal. Affirmed.

John G. Park and Francis M. Hayward, for appellants. Reed, Yates, Mastin & Harvey, for respondent.

BROADDUS, P. J.

Mandamus. On December 19, 1910, the relator filed his petition in the circuit court of Jackson county asking for a writ of mandamus to compel the defendants to pay him his salary as president of the upper house of the common council of Kansas City. The petition recites substantially: That the relator at the general city election of the year 1908 was duly and legally elected president of the upper house of the common council of the city, and that he duly qualified as such president on the _____ day of April, 1908, and assumed such office, and has ever since up to the present date acted as such municipal officer and discharged the duties of said office in all things. That the term for which he was elected pursuant to the charter of the city and its laws was for four years. That prior to the election of petitioner a certain ordinance was enacted by the legislative bodies of the city having the authority to so do and was approved by the mayor, to wit, on the 8th day of April, 1907, ordinance No. 35,479, as follows:

"An ordinance fixing and regulating the compensation of officers and employés in certain departments and offices of the city government.

"Be it ordained by the common council of Kansas City, Missouri:

"Section 1. That from and after the taking effect of this ordinance, the following officers and employés shall be employed at the expense of the city in the several departments and offices mentioned, and said officers and employés shall hereafter receive for their services salaries calculated at the rate hereinafter specified, to be paid at the same time and in the same manner, to wit:

                        Position.                     Salary per Year
                  Mayor's office — Mayor,             $5000.00 per year
                  Members of the upper              $5.00 per day for each
                house of the common               day he may serve while
                council, fixed by                 in session as such alderman
                the charter, except the           not to exceed
                president of the upper            $300.00 per year, with
                house.                            the exception of the
                                                  president of the upper
                                                  house, who shall receive
                                                  $1800.00 per year, and
                                                  is ex-officio president of
                                                  the board of public
                                                  works."
                

That said ordinance was in force at the time petitioner was elected to said office of president of the upper house of said common council. That by the terms of said ordinance and the charter then in force the petitioner was entitled to be paid a salary of $1,800 per year. That the money for such payment has been lawfully and duly set apart. That it became the duty of the city auditor and city comptroller to issue and deliver to petitioner warrants drawn by the former and countersigned by the latter directing the payment to petitioner of such sum as might be due him from month to month for and on account of his said salary as aforesaid. That such warrants were drawn from month to month by said officers and delivered to him until the 1st day of August, 1910, at which date the respondents A. F. Brodie and Gus Pearson, city auditor and city comptroller, failed and refused to deliver any warrant for the salary of petitioner then due in the sum of $75, being the salary due him for the last half of the month of July, 1910. That no warrant has been issued to petitioner for his salary since the 15th day of July, 1910. That warrants for his salary at the rate of $1,800 per year as per said ordinance for the last half of July and for the months of August, September, October, and November for the year 1910 have been wrongfully and unlawfully withheld from petitioner.

He prays to have a writ of mandamus to compel respondents to issue and deliver to him city warrants for said months mentioned. An alternative writ of mandamus was issued, to which respondents filed their return, in which they admit petitioner's election and qualification to said office of president of the upper house of the common council of the city and the existence of ordinance 35,479, fixing the salary of the office at $1,800; but they allege that...