The State ex rel. Schuler v. Nolte

• Decision Date: 17 June 1926
• Docket Number: 26946
• Citation: 285 S.W. 501,315 Mo. 84
• Parties: The State ex rel. Anton Schuler, Sheriff of City of St. Louis, and Arthur Stephens, Deputy Sheriff, v. Louis Nolte, Comptroller of City of St. Louis, and William Beuchner, Treasurer
• Court: Missouri Supreme Court

285 S.W. 501

315 Mo. 84

The State ex rel. Anton Schuler, Sheriff of City of St. Louis, and Arthur Stephens, Deputy Sheriff, v. Louis Nolte, Comptroller of City of St. Louis, and William Beuchner, Treasurer

No. 26946

Supreme Court of Missouri

June 17, 1926

Peremptory writ awarded.

Oliver T. Remmers for relators.

(1) The sheriff and the judges of the circuit court have the exclusive power to fix the number of deputy sheriffs necessary to perform the duties of the sheriff's office. Sec. 11637, R. S. 1919; Laws 1925, sec. 3, p. 329. (2) A city cannot, by ordinance or resolution, add to or take from the requirements of a statute, and the State may retain to itself some part of the government within a municipality. State ex rel. v. Gordon, 217 Mo. 103; City of Fulton v Sims, 127 Mo.App. 677; Kansas City v. Vineyard, 128 Mo. 75; State v. De Bar, 158 Mo. 395. (3) Obviously, the rate of compensation can mean but one thing and that is the salary each classified position is to pay per month or year, and not the total appropriation or number of employees. (4) It is incumbent upon the Legislature to provide for the maintenance of officers of the State and officers of the courts, and as the General Assembly has control over the revenue of a city it can compel the city to support such officers and may make an appropriation direct out of municipal revenues for that purpose. Flanagan v Kansas City, 69 Mo. 462; State ex rel. v. Field, 119 Mo. 593; State ex rel. Faxon v. Owsley, 122 Mo. 68; State ex rel. Lynn v. Board of Education, 141 Mo. 45; State ex rel. v. Pike County, 144 Mo. 275; State ex rel. Hawes v. Mason, 153 Mo. 23; State ex rel. City of Carthage v. Gordon, 217 Mo. 103; Reilly v. Kansas City, 31 Mo.App. 439; State ex rel. Goodnow v. Police Commissioners, 80 Mo.App. 206; State ex rel. Reynolds v. Jost, 265 Mo. 51.

Julius T Muench and Charles J. Dolan for respondents.

(1) The act relating to the compensation of the sheriff, his deputies and assistants, and fixing and regulating the compensation of the sheriff's attorney, is null and void, for the reason that it violates Section 53 of Article IV of the Constitution of Missouri, prohibiting the enactment of special and local laws. Henderson v. Koenig, 168 Mo. 356; State ex rel. Garesche v. Roach, 258 Mo. 541. (2) Section 3 of the said act is null and void for the further reason that the subject-matter of the said section is not clearly expressed in the title of the act. Mo. Constitution, art. 4, sec. 28; Williams v. Railroad, 233 Mo. 666. (3) Section 3 of the said act is null and void for the further reason that it seeks unlawfully to delegate to the sheriff and to the judges of the circuit court the performance of a legislative function, namely, the determination of the number of deputies and assistants who may be appointed by the said sheriff. Lammert v. Lidwell, 62 Mo. 188; State ex rel. v. Pond, 93 Mo. 606; City of St. Louis v. Russell, 116 Mo. 248. (4) The Act of 1925, unlike the statute involved in the Mason case, cited by relators, does not make a specific appropriation out of the funds in the hands of the treasurer of the city of St. Louis, but unlawfully seeks to delegate to the sheriff the power to determine the amount of such appropriation. (5) Section 3 of the said act provides that the compensation of such deputies and assistants as may be appointed shall not exceed the annual rate of compensation fixed by the board of aldermen, and therefore the said section cannot become operative until an annual rate of compensation shall have been fixed by the board of aldermen. As the board of aldermen has not fixed the annual rate of compensation for "as many deputies and assistants as may be necessary to perform the duties of the sheriff's office," but merely the monthly salaries of sixty-five employees, Section 3 is not operative.

Atwood, J. All concur; Graves, J., in separate opinion, in which Walker, J., concurs.

OPINION

ATWOOD

This is an original proceeding in mandamus instituted by Anton Schuler, Sheriff of the City of St. Louis, Missouri and Arthur Stephens, one of his deputies, to compel the Comptroller and the Treasurer of the City of St. Louis to honor and pay the salary pay-roll of said sheriff and his sixty-nine deputies and assistants, as certified by him from December 1, 1925, to December 15, 1925.

The substantial allegations of relators' petition, after identifying the parties hereto, are that the office of sheriff in the State of Missouri was created by the Constitution of Missouri; that the Sheriff of the City of St. Louis is required by law to have a sufficient number of assistants and deputies to perform the duties of his office; that under the laws of this State he has the power and authority to appoint as many deputies and assistants as the work of his office requires, subject to the approval of the circuit judge, and in the case of the Sheriff of the City of St. Louis to the approval of the judges of the circuit court in general term; that respondent Louis Nolte, as Comptroller, has refused to honor, voucher and order paid the pay-roll of the Sheriff of the City of St. Louis and the assistants and deputies and employees of the sheriff's office, as the same was duly certified and signed by Anton Schuler, Sheriff as aforesaid, and by him submitted to said Comptroller for the earned and unpaid salaries and wages due said sheriff and his assistants, deputies and employees, including petitioner Arthur Stephens, herein for the period from December 1, 1925 to December 15, 1925, and that said William Beuchner, as Treasurer of the City of St. Louis, because of the refusal of said Comptroller to approve, voucher and authorize the payment of said above-mentioned pay-roll has refused to make the payments as aforesaid, said pay-roll being fully set out in said petition; that said Comptroller has arbitrarily and without authority of law refused to honor and pay said pay-roll in its entirety, and has arbitrarily and without authority of law stricken therefrom and refused to pay the wages and salary due petitioner Arthur Stephens and others whose names appear upon said pay-roll; that said Comptroller and said Treasurer are without legal authority or right whatsoever to withhold and refuse to pay any or all of said Sheriff's assistants, deputies or employees, and that said Comptroller and Treasurer are unlawfully usurping power and authority not given them under the laws of this State; that on April 30, 1925, the Governor of Missouri approved House Bill No. 231, the same being an act of the General Assembly of the State of Missouri relating to the office of Sheriff of the City of St. Louis, being "An Act to repeal an act of the General Assembly found in the Session Acts of 1879, at page 97, entitled, 'An Act regulating the compensation of the Sheriff of the City of St. Louis,' approved May 19, 1879, and to enact in lieu thereof a new act fixing and regulating the compensation of the Sheriff of the City of St. Louis, his assistants, and fixing and regulating the compensation of the sheriff's attorney, with an emergency clause," found on pages 328, 329 and 330 of the Laws of Missouri of 1925; that Section 2 of said act provides that all fees earned by the Sheriff of the City of St. Louis during any calendar month shall be paid into the treasury of the city of St. Louis on or before the tenth day of the next succeeding calendar month and that said sheriff has turned over to the treasury of the city of St. Louis all fees earned by the sheriff during any calendar month; that Section 3 of said act provides that said sheriff shall, with the approval of the judges of the circuit court of said city appoint as many deputies and assistants as may be necessary to perform the duties of his office, and fix the compensation for their services, which compensation, however, shall not in any case exceed the annual rate of compensation fixed by the Board of Aldermen of the City of St. Louis therefor; that Section 5 of said act provides that said sheriff shall receive for his services the sum of ten thousand dollars per annum, said sum and the compensation of said sheriff's deputies and assistants to be paid out of the treasury of the city of St. Louis in equal semi-monthly installments; that said comptroller has approved and vouchered, and said treasurer has paid four previous and similar pay-rolls prior to the pay-roll above mentioned; that on Monday, June 1, 1925, the judges of the Circuit Court of the City of St. Louis, sitting in general term, ordered that the number of deputies and assistants to be employed in the office of the sheriff of the city of St. Louis, when the above law takes effect, to-wit, on the 10th day of July, 1925, be fixed at sixty-one, and that the number of said deputies and assistants beginning with the October term, 1925, be fixed at seventy, and that the following recommendation be submitted to the Board of Aldermen of the City of St. Louis with reference to the salary to be paid to the employees in the office of said sheriff, as provided for in the act aforesaid, effective as and of July 10, 1925, to-wit:

Chief deputy criminal division

$ 300.00

Chief deputy civil division

300.00

Assistant chief deputy civil division

225.00

Execution deputy

300.00

Property man

250.00

Bookkeeper and cashier

250.00

Court room deputies

175.00

Service deputies

165.00

Relators' petition further alleges that on July 9, 1925, Ordinance No 34280 of the city of St. Louis was approved, fixing salaries and making appropriations, along with other appropriations for the salaries of sixty-five deputies and employees in said sheriff's office, said ordinance to take effect and be in force from and after the date when said House Bill No. 231 should become effective; that on ...