State v. Valle

• Decision Date: 31 March 1867
• Citation: 41 Mo. 29
• Parties: STATE OF MISSOURI, BY ROBERT F. WINGATE, Attorney-General, Plaintiff, v. AMADEE VALLE, Defendant.
• Court: Missouri Supreme Court

41 Mo. 29

STATE OF MISSOURI, BY ROBERT F. WINGATE, Attorney-General, Plaintiff,

v.AMADEE VALLE, Defendant.

Supreme Court of Missouri.

March Term, 1867.

R. F. Wingate, pro se.

Knox & Smith, for defendant.

HOLMES, Judge, delivered the opinion of the court.

This is an ex officio information in the nature of quo warranto, and the case is submitted on demurrer.

The defendant, a member of the House of Representatives, elected in November, 1866, from the Fifth district of the City of St. Louis, for the twenty-fourth General Assembly, (which is not yet dissolved,) was appointed one of the Board of Water Commissioners for the City of St. Louis, in and by the act of the General Assembly, (approved March 13, 1867,) of which he was at the time a member, and entered upon the duties of the office; and the question is whether he was eligible to that office under the constitution of the State, which provides that “no Senator or Representative shall, during the term for which he shall have been elected, be appointed to any civil office under this State, which shall have been created, or the emoluments of which shall have been increased, during his continuance in office as a Senator or Representative, except to such offices as shall be filled by election of the people”--Const. art. 4, § 15.

Three persons named were by the act appointed and constituted a Board of Water Commissioners for the City of St. Louis, with full powers to act as such until the first day of June, 1871, when their term of office is to end and determine; (sec. 2,) and then the mayor, with the advice and consent of the city council, is to appoint the commissioners for a term of four years, and until their successors are appointed and qualified. (Sec. 21.) They are to have an annual salary of three thousand dollars; but it is not expressly said in either section whether this salary is to be paid by the State or by the city. It may be gathered, however, from the general tenor of the act, that it was the intention of the Legislature, and it will be taken to be the proper effect of the act, that this salary is to be paid by the city. The city is authorized, through the agency of this board, to take measures in the manner prescribed, to obtain a supply of water from the Mississippi river for the use of the city. The general effect of the act is to invest this board of commissioners with the necessary powers to accomplish this object. All their powers are derived from the act. The board is made a part of the local administration of the city. They hold their offices under the statute, as the mayor holds his office under the city charter.

That this is a civil office, and not a mere agency or an employment under contract, would seem to be very clear. In the case of Primm v. City of Carondelet, 23 Mo. 22, a city counsellor appointed under an ordinance of the city, after the office had been abolished by a repeal of the ordinance, claimed that he was employed by the year under contract; but it was held that it was a civil office in which he had no vested right, which he might resign at will, and which might be abolished at the pleasure of the city; and he was allowed to recover his salary only for the time he was in office. So these commissioners may resign, or the act may be repealed and the offices abolished. Certain commissioners appointed by an act of the Legislature to sign city treasury warrants, which were to be delivered to the city treasurer, and issued by the city to circulate as money, were held to be State officers, and they were not allowed to recover against the city...