State v. Player

• Decision Date: 20 December 1919
• Docket Number: No. 20507.,20507.
• Citation: 280 Mo. 496,218 S.W. 859
• Parties: STATE ex rel. WHALEN v. PLAYER, Comptroller.
• Court: Missouri Supreme Court

218 S.W. 859

280 Mo. 496

STATE ex rel. WHALEN v. PLAYER, Comptroller.

No. 20507.

Supreme Court of Missouri, Division No. 1.

December 20, 1919.

Motion for Rehearing and Motion to Modify Judgment Overruled March 2, 1920.

Appeal from St. Louis Circuit Court; Rhodes E. Cave, Judge.

Mandamus by the State, on the relation of M. J. Whalen, against James Y. Player, City Comptroller. From an adverse judgment, relator appeals. Reversed and remanded, with direction.

Igoe & Carroll and Fauntleroy, Cullen & Hay, all of St. Louis, for relator.

Charles H. Danes and Everett Paul Griffin, both of St. Louis, for respondent.

SMALL, C.

I. Appeal from the circuit court of the city of St. Louis. This is a proceeding in mandamus to compel the city comptroller of the city of St. Louis to pay the relator salary at the rate of $1,800 per annum as an alderman, under the new charter, instead of $300 per annum fixed for members of the house of delegates by the old charter of said city. Relator was paid at the rate of $300 per annum, $25 per month, but received it under protest, and claimed, at the time, that he was entitled to $1,800 per annum, or $150 per month. The lower court denied the peremptory writ and dismissed relator's proceeding. He duly perfected his appeal to this court.

The questions involved in this appeal are: (1) Which charter, the old or new, prescribes the salary of the relator, after the new charter took effect; (2) whether, if, the new, the provision of the Constitution against increasing salaries of municipal officers during their term of office is violated; and (3) whether relator waived or estopped himself from claiming any greater salary by his acceptance under protest of $25 per month.

Relator was a member of the house of delegates under the old charter at the time the new charter became effective. He was elected April 1, 1913, for a period expiring April 5, 1915. The new charter was adopted June 30, 1914, but did not take effect until 60 days thereafter, or August 29, 1914. Under the old charter the legislative body consisted of the municipal assembly, composed of two branches, the council and house of delegates. The council consisted of a president and 12 members, all elected by the city at large. The house of delegates had 28 members, one elected by each ward in the city. Under the new charter, the legislative power is vested in a single body called the board of aldermen, composed of 28 members and a president, all elected by the city at large.

Section 8 of the schedule of the new charter, provides as follows:

"The present municipal assembly, with its present officers, or such as the respective houses may lawfully choose, under the present charter, shall continue until the first Monday in April, 1915, with all the powers and duties given to the board of aldermen by this charter, and subject to its provisions; and until said date, the provisions of the present charter with regard to the filling of vacancies in the office of mayor or temporary performance of the duties of mayor, shall remain in force."

Section 9 of said schedule was as follows:

"Section 9. All terms of office of the present officers or employés, except those terms expressly saved or continued by this charter, are abolished."

By section 3 of article 2 of the new charter, the first board of aldermen elected after the new charter took effect was to be elected at the general election to be held on Tuesday, April 6, 1915.

Section 18 of the said schedule provided that:

"Every present city officer, who, if appointed or elected, would be required by this charter to take an official oath, shall take, subscribe and file such oath as provided in this charter."

Section 3 of article 8 of said new charter provided that:

"Every officer * * * shall before entering upon his duties * * * take and subscribe and file with the register an oath or affirmation that he has all the qualifications and is not subject to any of the disqualifications named in this charter for the office or employment he is to assume; that he will support * * * the charter and ordinances of the city."

Section 16 of the schedule of the new charter provides:

"All present boards, commissions and officers created by charter or ordinance and not provided for or authorized or expressly continued by this charter are hereby abolished, save only the city plan commission, board of engineeers and board of examiners of plumbers, which said commission and boards, until abolished by ordinance, shall hereafter be appointed by and under the control of the board of public service."

The powers, duties, and qualifications of the members of the board of aldermen are materially different from those of either branch of the municipal assembly of the old charter. In some respects, such powers and duties are increased and in others taken away.

Section 14 of article 3 of the old charter provided that each member of the assembly should be entitled to a salary of $300 per annum and no more.

Section 2 of article 4 of the new charter provides that: "The salary of each alderman Shall be $1,800.00 per annum."

II. The Constitution provides (section 22, article 9, as to amending the charter of St....