State v. Miller
| Decision Date | 15 June 1926 |
| Docket Number | No. 26460.,26460. |
| Parties | STATE ex rel. MULVOY v. MILLER et al |
| Court | Missouri Supreme Court |
Alroy S. Phillips, of St. Louis, for relator. Oliver Senti, City Counselor, of St. Louis (Conway Elder, of St. Louis, of counsel), for respondents.
Relator is a citizen, resident, taxpayer, and voter of the city of St. Louis, Mo., and is employed as a ladderman in the fire department of said city, classed as a private, Class A. Respondents are the mayor, comptroller, and president of the board of aldermen, respectively, and as such constitute the board of estimate and apportionment of said city. This is an original proceeding In mandamus, whereby relator seeks to compel respondents to submit to the board of aldermen of the city of St. Louis a statement showing in the estimated requirement of the fire department of said city a salary of $180 per month for relator, and to submit to said board of aldermen a bill appropriating the amount deemed necessary for the use of the fire department of said city in which the salary of relator shall, be fixed at $180 per month.
The material allegations of relator's petition, aside from the above, are that under its charter the board of aldermen of the city of St. Louis shall provide and maintain a fire department for said city; that by duly enacted ordinance said board of aldermen has provided for said fire department, the number and classification of officers and employers, the number in each classification, and their duties, including the position and work of relator, and that the number of most of the employees in the various departments of said city is not fixed by law, but must be fixed by said board of estimate and apportionment; that in article 5 of said charter if is also provided that the people shall have power, at their option, to propose ordinances, and to adopt the same at the polls, with the same effect as if adopted by the board of aldermen and approved by the mayor, such power to be known as the initiative and to be exercised subject to the provisions of the charter ; that the proposal of ordinances shall be by petition and submitted to the voters at an election, and if a majority voting on the proposed ordinance vote in favor thereof it shall be an ordinance of the city, in effect ten days thereafter; that said article completely provides for the exercise of said initiative power, and contains nothing requiring the said board of estimate and apportionment to recommend or join in recommending any ordinance adopted by the people under said initiative power; `that at an election held on April V, 1925, there was Submitted to the qualified voters of said city an ordinance proposed by petition under the initiative power, providing, among other things, for the fixing of the salary of a private, Class A, in the fire department, at $180 per month, whereby relator's salary was increased $25 per month; that said ordinance was adopted by a majority of 87,933 of the electors voting, and was duly certified to the register of said city by the board of election commissioners as having been adopted; that the board of aldermen of the city were, at the time of the filing of relator's petition herein, in annual session pursuant to provisions of the charter of the city; that under the charter the board of estimate and apportionment is required to submit to the board of aldermen, at the beginning of its annual session, or as soon thereafter as possible, a statement showing the estimated receipts and requirements of each department, board, or office of said city for the current fiscal year, and a bill appropriating the amounts deemed necessary therefor, and that the board of aldermen is required immediately to proceed to the consideration of said bill, with power to reduce the amount of any item in such appropriation bill, except amounts fixed for meeting any ordinance obligation, but with no power to increase such amounts or insert new items; that by section 25 of acticle 4 of the charter it is provided that no money shall be expended except in consequence of appropriations made by ordinance; and that no ordinance contemplating or involving the payment of any money shall be adopted unless the board of estimate and apportionment shall have recommended or joined in recommending the same; that in the statement and appropriation bill which the board of estimate and apportionment is engaged in preparing the salaries of all officials and employees and all other liabilities and expenses of said city have been estimated, fixed, and appropriated for the number and the salaries and the full amounts provided in the charter and ordinances of said city, except the salaries of relator and other members of the fire department which have been fixed and appropriated at $25 per month less than the amounts provided by the said initiative ordinance, the salary of relator being fixed and appropriated at $155 per month; that relator has demanded of the board of estimate and apportionment that in its said statement and appropriation bill it estimate, fix, and appropriate his salary at $180 per month as provided in said initiative ordinance, but that said board refuses so to do on the ground that the said initiative ordinance is void because said board of estimate and apportionment has not recommended or joined in recommending the same as provided in section 25 of article 4 of the charter, and because the estimated revenues of the city are not sufficient to pay all other estimated salaries, liabilities, and expenses of the city in full unless the salary of relator and other members of the fire department is reduced by $25 per month; that it is the duty of the board of estimate and apportionment to fix and appropriate the salary of relator at $180 per month; and that without the aid of a writ of mandamus relator has no remedy in the premises.
Upon service of our alternative writ, respondents filed their return admitting most of the above allegations, and setting up as defensive matter that the estimated revenues of the city of St. Louis for the fiscal year beginning April 14, 1925, is $18,885,000; that to appropriate for the use of the several departments of the city an amount sufficient to pay the salaries of all the employees authorized by ordinances of the city, in addition to the amount fixed by statute for the payment of principal and interest on the city's debt, would necessitate the appropriation of an amount far in excess of the city's estimated income for the current fiscal year; that in order to avoid the expenditure of an amount largely in excess of the estimated income, the board of estimate and apportionment has found it necessary to appropriate to the various departments sums that are insufficient to pay the salaries of as many employees as the heads of said departments are authorized by law to appoint; and that the heads of the various departments have been formally requested to reduce the number of their employees to an extent that will bring their annual payroll within the amount appropriated; that before petitions for the enactment of the initiative ordinance were circulated the board of estimate and apportionment had been requested to recommend to the board of aldermen an ordinance increasing the salary of relator and other members of the fire department $25 per month; that there was then pending before the General Assembly of the state a bill, since enacted into law, increasing by approximately $800,000 the amount which the city is required by law to appropriate annually for the maintenance of the police department; that the power of the city to levy taxes for local purposes is, by section 11 of article 10 of the Constitution of Missouri, limited to a rate not in excess of $1.35 on each $100 valuation; that the board of estimate and apportionment refused to recommend said ordinance increasing the salaries of members of the fire department because the money to pay said proposed increase, together with other fixed charges and expenses of the city for the fiscal year commencing April 14, 1925, and subsequent years, is not available without increasing the city's tax rate to a rate in excess of that fixed by the Constitution; that said initiative ordinance is void because the board of estimate and apportionment has not recommended the same as provided by section 25 of article 4 of the charter; that the initiative petition was filed with the board of election commissioners on February 18, 1925; that the proposed ordinance was certified to the board of aldermen on February 24, 1925; that on February 27, 1925, the board of aldermen adopted a resolution finally refusing to adopt the ordinance ; that on March 6, 1925, the clerk of the board of aldermen reported in writing to said board that on February 29, 1925, a committee of the petitioners had filed with him a petition stating that they finally refused to state in writing, as provided by article 5 of the charter, that there was no necessity for submitting the ordinance to the voters; that on March 2, 1925, the clerk of the board of aldermen certified to the board of election commissioners the refusal of the board of aldermen to adopt said proposed ordinance and the refusal of the committee of petitioners to withdraw the same; that on April 7, 1925, said proposal was submitted to the electors; that said proposed ordinance was not lawfully adopted in compliance with section 4 of article 5 of the charter, in that the refusal of the board of aldermen to adopt the same was certified to the board of election commissioners before the expiration of 60 days after said proposal was certified to the board of aldermen by the board of election commissioners, and in that said petition was not...
To continue reading
Request your trial