State v. Dierkes

• Decision Date: 25 November 1908
• Parties: STATE ex rel. GAVIGAN v. DIERKES, City Auditor.
• Court: Missouri Supreme Court

113 S.W. 1077

214 Mo. 578

STATE ex rel. GAVIGAN v. DIERKES, City Auditor.

Supreme Court of Missouri, Division No. 1.

November 25, 1908.

1. MUNICIPAL CORPORATIONS (§ 82) — PROCEEDINGS OF COUNCIL.

Under City Charter, art. 3, § 31 (Ann. St. 1906, p. 4820), and section 1314 et seq., Rev. Mun. Code City of St. Louis 1901, the legislative branch of the city of St. Louis is composed of two houses, and therefore no office can be created except by the act of both houses; but either house may appoint a committee to investigate any subject-matter properly coming before it, and neither house, acting alone, can enter into a valid contract by resolution.

2. MUNICIPAL CORPORATIONS (§ 974) — PROCEEDINGS OF COUNCIL.

The house of delegates of the city of St. Louis, one of the two houses composing its municipal assembly, has power to make a special investigation of the returns of property made for taxation, and to designate a committee for that purpose.

3. MUNICIPAL CORPORATIONS (§ 228) — CONTRACTS.

Rev. St. 1899, § 6759 (Ann. St. 1906, p. 3327), provides that no city shall make any contract not duly authorized by law or which is not in writing, and the city charter of St. Louis, art. 16, § 7 (Ann. St. 1906, p. 4890), provides that all contracts relating to city affairs shall be in writing. Held, that a contract entered into by a special committee, appointed by the house of delegates, for the purpose of investigating tax returns, by which the services of an attorney were contracted for by such committee, is within the meaning of section 6759 and the charter provision, and the only legal method for making such contract is by ordinance providing for the work and providing for the execution of a contract.

4. MUNICIPAL CORPORATIONS (§ 890) — PAYMENT OF MONEY — ORDINANCE — "OTHER EXPENSES."

Charter of the City of St. Louis, art. 5, § 14 (Ann. St. 1906, p. 4839), provides that no money shall be expended except by ordinance, the provisions of which shall be specific and definite. An appropriation ordinance provided for "publishing proceedings, printing, stationery, office expenses, furniture, rent of telephone and other expenses of house of delegates." Held, that the term "other expenses" means expenses of the character theretofore mentioned in that clause of the appropriation act, and does not include an appropriation for expenses incurred by a committee appointed by a resolution of the house of delegates to investigate tax returns.

Appeal from St. Louis Circuit Court; Daniel G. Taylor, Judge.

Proceedings by the state of Missouri, at the relation of William J. Gavigan, for mandamus against Bernard Dierkes, auditor of the city of St. Louis. Writ denied, and relator appeals. Affirmed.

Rassieur, Schnurmacher & Rassieur, for appellant. Charles W. Bates and Benjamin H. Charles, for respondent.

GRAVES, J.

On October 30, 1903, the house of delegates of the city of St. Louis passed a resolution authorizing the appointment of a special committee of five from that body for the purpose of investigating the returns of property as made for taxation, and by this resolution the said committee was authorized to appoint a clerk at a salary of not more than $200 per month and one or more attorneys at a salary of not more than $350 per month each. This committee was appointed November 6, 1903, and the relator was named as its clerk, and, under the evidence, performed the work of a clerk for the committee. On April 8, 1904, the following resolution was passed by the house of delegates:

"Your special committee on investigation of tax returns, heretofore appointed by this house on October 30, 1903, begs leave to report that in accordance with authority conferred on said committee, it did, on the 6th day of November, 1903, employ Peter T. Barrett as its attorney and counselor at an agreed compensation of $350, and Wm. J. Gavigan as its clerk at an agreed compensation of $200 per month, and on February 15, 1904, employed William F. Ryan as an additional attorney at an agreed compensation of $350 per month, and because of the expenses incurred thereby by your committee, we ask that your honorable house pass the following resolution:

"Resolved, That the committee on the `Investigation of Taxes' be and is hereby authorized to expend the sum of $3,615 out of the fund municipal assembly, house of delegates, to defray the expenses already incurred by your committee under said resolution."

On April 15th the said committee made its report, and the house of delegates adjourned sine die. On July 15th, at a subsequent session of the house of delegates, the following resolution was introduced:

"Whereas, the special committee of the house of delegates on tax investigation did on the 8th day of April, 1904, report to this honorable house that, in accordance with the authority conferred on said committee, it did, on the 6th day of November, 1903, employ Peter T. Barrett, an attorney, at an agreed compensation of $350 per month and William J. Gavigan, clerk and bookkeeper, at an agreed compensation of $200 per month, and on the 15th day of February, 1904, did employ William F. Ryan, an attorney, at an agreed compensation of $350 per month, and because of the expense thereby incurred by it the said committee requested this honorable house to authorize it to expend the sum of $3,615 to defray the same; and

"Whereas, this House did on said 8th day of April, 1904, authorize the expenditure of $3,615 to defray said expenses; and

"Whereas, the said special committee on tax investigation did on the 15th day of April, 1904, report to this honorable house that immediately upon the organization of said committee, to-wit, November 6, 1903, it employed Peter T. Barrett at an agreed compensation of $350 per month and Wm. J. Gavigan at an agreed compensation of $200 per month, and that on the 15th day of February, 1904, it did employ William F. Ryan at an agreed compensation of $350 per month; therefore be it

"Resolved, That the said Peter T. Barrett be allowed for his services to said committee the sum of $1,855, and that the said William J. Gavigan be allowed for his services to said committee the sum of $1,060, and that the said William F. Ryan be allowed for his services to said committee the sum of $700, to be paid out of the fund heretofore appropriated to pay the expenses of the house of delegates and that the clerk of this house be instructed to draw warrants on said fund in favor of said Peter T. Barrett for $1,855, William J. Gavigan for $1,060 and William F. Ryan for $700."

The respondent is the auditor of the city of St. Louis. There was oral evidence introduced which tended to show the services of the relator as clerk of said committee, and that his services were reasonably worth $200 per month. The position of the city auditor is well stated in his return to the alternative writ of mandamus. In this return he says:

"Defendant alleges that on or about the 3d day of October, 1904, the clerk of the house of delegates drew his warrant in favor of relator for the sum of $1,060, and that said warrant was presented to defendant as auditor of the city of St. Louis, and that the defendant on or about the 25th day of October, 1904, declined and refused, and still declines and refuses, to audit and allow the same, and declines and refuses to draw a warrant for the same to pay the same. Defendant states that the house of delegates did not possess the power or the authority under the law to authorize its said committee to make the alleged contract of employment of relator as clerk, and the said alleged contract was and is void under the provisions of section 48 of article 4 of the Constitution of the state of Missouri. This defendant states further that under section 18, art. 16 (Ann. St. 1906, p. 4892), of the charter of the city of St. Louis, no contract for services of any clerk could be entered into at a compensation exceeding the rate of $1,800 per year — that is to say, exceeding $150 per month — and that the alleged employment of the relator as such clerk of the said committee of the said house of delegates was without authority of law. This defendant states further that there is now no appropriation or fund, nor has there been any such appropriation or fund since the 1st of April, 1904, out of which the amount claimed by the relator could be paid, or against which this defendant as auditor of the city of St. Louis could draw or allow a warrant therefor. Defendant states further that the defendant, as auditor of the city of St. Louis, is prohibited by section 11 of article 5 (Ann. St. 1906, p. 4839) of the charter of the city of St. Louis from drawing or allowing a warrant in favor of the relator when there is no fund or appropriation against which such warrant could be drawn or allowed, or out of which it could be paid. Wherefore this defendant prays that the alternative writ be quashed, and the peremptory writ be refused, and that he be dismissed with costs."

John Faudi testified, in effect, as follows: "Am second deputy auditor of the city of St. Louis. Testified that he had with him in court the daily balance book covering all appropriations for the city. The daily balance book is an exact copy of the appropriation bill, from time to time. The different departments draw against it, and deductions are made showing balances every day. When the appropriation bill is passed, the credits are entered in that book, showing the amount carried by the bill to the various departments and objects mentioned in the bill. A separate account is kept for each appropriation. Whatever the bill appropriates to the house...