The State ex rel. Hueller v. Thompson

• Citation: 289 S.W. 338,316 Mo. 272
• Decision Date: 30 December 1926
• Docket Number: 26995
• Parties: The State ex rel. Fred Hueller v. L. D. Thompson, State Auditor
• Court: United States State Supreme Court of Missouri

289 S.W. 338

316 Mo. 272

The State ex rel. Fred Hueller v. L. D. Thompson, State Auditor

No. 26995

Supreme Court of Missouri

December 30, 1926

Peremptory writ awarded.

F. T Stockard for relator.

(1) Relator is an appointee of the Board of Permanent Seat of Government, and can be dismissed by it at pleasure. The salary of the relator is not fixed by statute, the board fixes it. (2) The Constitution does not say in so many words that a general appropriation bill shall not contain anything other than what is permissively granted in said Section 28 of Article 4, but the fact that a general appropriation bill forms an exception to said Section 28, and, therefore, is not limited to a single subject, justifies the conclusion that the framers of that document intended that it should not embrace more than is specified therein. (3) General legislation cannot be made a part of an appropriation bill. State ex rel. v. Tollerton, 236 Mo. 142; State ex rel. Carr, 13 L. R. A. 177; State ex rel. v. Marron, 128 P. 485; Commonwealth v. Gregg, 29 A. 297.

North T. Gentry, Attorney-General, for respondent.

(1) If Section 100, Laws 1925, p. 361, is to be given its intent and meaning, the salary of no official or employee can be increased over the salary of such official for the previous biennium. (2) The relator herein is an official, within the meaning of the law, and within the meaning of the Appropriation Act of 1925. At page 33, Section 83 of said act, there was appropriated out of the State Treasury, $ 185,930, with which to pay an assistant commissioner, other officers and other expenses of the Board of the Permanent Seat of Government. Out of this fund, therefore, the salary of the assistant commissioner must be paid. Evidently, the General Assembly did not intend for that salary to be increased, and taking this section in connection with the other section referred to the Board of the Permanent Seat of Government was not authorized to make such increase. (3) If the assistant commissioner is a state officer, then the salary of a state officer cannot be increased during the time of his term in office.

Otto J. All concur, except Graves and Ragland, JJ., absent.

OPINION

OTTO

This is an original proceeding in mandamus, brought at the relation of Fred Hueller, Assistant Commissioner of the Permanent Seat of Government, against L. D. Thompson State Auditor, to compel the Auditor to audit and draw his warrant upon the State Treasurer in favor of the relator for relator's salary at the rate of $ 150 per month instead of $ 135 per month. Relator, after setting out the character and the personnel of the Board of the Permanent Seat of Government, alleges the following facts:

That on the 22nd day of February, 1925, the Board of the Permanent Seat of Government appointed relator Assistant Commissioner of the Permanent Seat of Government and fixed his compensation at $ 135 per month; that relator entered upon his services at the monthly compensation so fixed and continued to receive his pay at that figure until June 1, 1925.

It is alleged that on the 18th day of May, 1925, the Board of the Permanent Seat of Government, by its order at a meeting of the board, increased the compensation of relator from $ 135 per month to $ 150 per month, and ordered that from and after June 1, 1925, relator should be paid for his services as Assistant Commissioner of the Permanent Seat of Government the sum of $ 150 per month; that the respondent refused to audit and pay relator's compensation at the increased figure, and relator declined to accept any other, so that from June 1, 1925, to the present date relator has received no pay and the purpose of this proceeding is to compel the Auditor to audit and allow relator's monthly salary at the increased figure of $ 150 per month from June 1, 1925.

Respondent timely filed his return to our alternative writ, expressly admitting all the facts alleged in relator's petition and in the writ, but respondent questioned his authority to recognize the legality of the act of the Board of the Permanent Seat of Government in increasing relator's salary, and for this reason only respondent declined to pay it. Upon the filing of respondent's return relator filed a demurrer thereto, then replaced the demurrer with a motion for judgment on the pleadings, which motion was unquestionably the proper pleading. The issue thus made up, there remains for this court a question of law only. That question is whether the action of the Board of the Permanent Seat of Government in increasing relator's compensation from $ 135 to $ 150 per month was within the board's power at the time the order was made, in view of a certain appropriation act hereafter referred to. If it was, the relator is entitled to a peremptory writ against respondent in this case, and if not, the alternative writ heretofore issued should be quashed and respondent discharged.

The question of law raised by respondent in his return is not in harmony with the question briefed by him, and we could decide this case without passing on what unquestionably was the real question of law which brought about this proceeding. The real question, as shown by the briefs on both sides, relates to the validity of certain provisions found in Section 100 of an Appropriation Act of 1925, Laws 1925, page 36 et seq., which section reads as follows:

"Sec. 100. Salary -- how determined. -- No salary for any official or employee, either elective or appointive, provided for by this appropriation act, shall be in excess of the salary provided by statutory law for such official or employee, and in all cases where the salary of any such official or employee is not definitely fixed by statutory law, no salary paid by virtue of this appropriation act shall be in excess of the salary paid to the officer or employee holding such position the previous biennium."

The Board of the Permanent Seat of Government has been created and certain powers conferred upon it by what is now Chapter 84, Revised Statutes 1919, and amendments thereto. The board consists of the Governor, the Secretary of State, State Auditor, State Treasurer, and the Attorney-General. The board is authorized to appoint a Commissioner for the Permanent Seat of Government, who holds office at the pleasure of the board and whose salary is fixed by law at $ 2500 per annum (Laws 1923, p. 301). The board, acting through this commissioner, exercises supervision over and is charged with the duty of protecting and taking care of the State's property, including the Capitol Building at the seat of Government.

In addition to the appointment of a commissioner, the board is expressly authorized to appoint as many watchmen as it may deem necessary for the proper protection of the State's property. As to the compensation of these watchmen, the statute makes no provision, thereby leaving it within the authority of the board to fix such compensation as the board may deem fair and reasonable.

While the foregoing covers the authority which has been specifically granted to the board as to the employment of assistants in the work of carrying out the duties and functions of the Board of the Permanent Seat of Government there is no inhibition against the appointment or employment of such others as may be necessary to carry out its purposes, and,...