The State ex rel. Whalen v. Player
| Decision Date | 02 March 1920 |
| Citation | 218 S.W. 859,280 Mo. 496 |
| Parties | THE STATE ex rel. M. J. WHALEN, Appellant, v. JAMES Y. PLAYER, Comptroller |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Rhodes E. Cave Judge.
Reversed and remanded (with directions).
Igoe & Carroll and Fauntleroy, Cullen & Hay for appellant.
(1) The charter is the supreme law of St. Louis, deriving its authenticity from the source of all power, the votes of the people, and, by its adoption, all inconsistent laws constituting part of either the ordinances or the previous charter, are repealed. (2) Sections 1 and 2 of the new charter repeal Section 14 of Article 3 of the old charter and after the adoption of the new charter there was no law existing in the City of St. Louis establishing the compensation of the aldermen at $ 300, but on the contrary the only law on the subject fixed the salary at $ 1,800. (3) The Constitution declares that (Section 22, Article 9) when a new charter shall be ratified at the election, then said charter shall become the organic law of such city, and sixty days thereafter shall take effect and supersede the charter of such city and all special laws inconsistent therewith." See Cutshaw v. City of Denver, 75 P. 22. (4) The existence of the Council and House of Delegates were created by the old charter, and when the old charter was repealed the existence of said Council and said House of Delegates was obliterated and destroyed, on the well-established principle that when the law creating an office ceases to exist the office cannot survive. Arnold v. Hilts, 155 P. 316; 28 Cyc. 401. See Riggin v. Richards, 79 S.W. 84; Barrett v. City of Falmouth, 58 S.W. 521; Welch v. Common Council, 64 N.W. 1051; Speed v. Common Council of Detroit, 58 N.W. 638. (5) An officer has no vested right to his office. It may be abolished by supervening power before the expiration of the term for which he was appointed or elected. If abolished, his right to the salary attached to it ceases. State ex rel. v. Davis, 44 Mo. 129; State ex rel. v. Smith, 87 Mo. 158; Givens v. Daviess County, 107 Mo. 603; Primm v. Carondelet, 23 Mo. 22; Magner v. St. Louis, 179 Mo. 495. (6) The right of a public officer to the salary of his office is a right created by law and is an incident to the office. It is not the creature of contract. State ex rel. v. Walbridge, 153 Mo. 203; Bates v. St. Louis, 153 Mo. 18; Cavance v. Milan, 99 Mo.App. 672; Sanderson v. Pike County, 195 Mo. 605. (7) The power that creates a municipal office and fixes the tenure of the officers holding the same may by an amendment of its charter abolish the office and its tenure at any time and create another office of like character with different tenure and larger salary; and a constitutional provision that in no case shall the salary or emoluments of any public officer be changed during his term of office does not impair such right. Bridgeman v. Roberts, 139 P. 518; Gilbert v. City of Paducah, 115 Ky. 160; State ex rel. v. Board, 58 P. 439; Stone v. Pryor, 45 S.W. 1053.
Charles H. Daues and Everett P. Griffin for respondent.
(1) The new charter of the City of St. Louis did not increase the relator's salary but merely continued him in office until the expiration of his term as a member of the House of Delegates, to which he was elected under the old charter. It was not the intention of the new charter to increase the salaries of the members of the House of Delegates for the balance of their terms. New Charter, Schedule, Sections 8 and 9. (2) If it was the intention of the new charter to pay relator the salary provided by the new charter for members of the Board of Aldermen for the balance of his term as a member of the House of Delegates, thereby increasing his salary from $ 25 per month to $ 150 per month, such provision would have been invalid under the Constitution of Missouri. Constitution, Art. 14, sec. 8. And such increase was prohibited by the old charter of the City of St. Louis. Old Charter, Art. 3, sec. 14; Art. 3, sec. 26, cl. 8; Art. 16, sec. 17. And also prohibited by the provisions of the new charter. New Charter, Art. 8, sec. 7; Art. 18, sec. 3, cl. 1. (3) The new charter did not require the relator to perform new and additional duties for the balance of his term, but as a matter of fact, curtailed the powers and duties of the legislative branch of the city government. Under these circumstances, not being required to perform new and additional duties, he is not entitled to an increase in pay for the balance of his term, even if the charter had expressly increased his salary. Dillon on Mun. Corps. (5 Ed.) sec. 426; Mechem on Public Officers, sec. 862; Folk v. City of St. Louis, 250 Mo. 116; State ex rel. Harvey v. Sheehan, 269 Mo. 421. (4) After the adoption of the new charter the relator accepted his salary each month at the rate of $ 25 per month and signed the pay roll (excepting the last five days of his term, $ 4.17), and he is now estopped to demand more pay. Galbreath v. City of Moberly, 80 Mo. 484; McNulty v. Kansas City, 198 S.W. 185.
SMALL, C. Brown and Ragland, CC., concur. Goode, J., not sitting.
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 sixty 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 twelve members all elected by the city at large. The House of Delegates had twenty-eight 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 twenty-eight 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 employees, 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 Alderman 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 about to assume; that he will support . . . the charter and ordinances of the city."
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