State Ex Rel. Nicolai v. Nolte

Counsel

Calhoun Boisseau, John W. Calhoun and Marvin E. Boisseau for relator. (1) Under the Charter of the City of St. Louis it is provided that whenever a vacancy occurs in the office of mayor, the president of the board of aldermen shall become mayor, and shall hold such office until a successor is elected and qualified, and that, while so holding the office of mayor, a temporary vacancy shall exist in the office of the president of the board of aldermen. It also provides that the vice-president of the board shall hold the office of president during the vacancy, with the right of succession to the office of mayor. Sec. 5, Art. VII, Charter, City of St. Louis. (2) The charter fixes the salary of the president of the board of aldermen at $3,000 per year and defines his duties and qualifications. Sec. 3, Art. IV, Charter, City of St. Louis. (3) Such salary is required to be paid at least monthly. Sec. 8, Art. VIII, Charter, City of St. Louis. (4) The comptroller of the City of St. Louis is by its Charter empowered to exercise a general supervision over all the fiscal affairs of the city and is specifically required, where the Charter, a by-law or an ordinance so provides, as in Sec. 3, Article IV, and Sec. 8, Article VIII, above mentioned, to pay the employee according to such regulation. He is further required "to audit all pay rolls . . ., certify the balance thereon, as stated by him, and draw his warrant on the Treasurer therefor." Sec. 2, Art. XV, Charter, City of St. Louis, Mo. (5) The treasurer is empowered to receive and keep the money of the city, and pay out the same on warrants drawn by the comptroller, and not otherwise. Sec. 24, Art. XV, Charter, City of St. Louis. (6) The emoluments of an office always inhere in the holding of the office and belong to the incumbent. People v. Hopkins, 55 N.Y. 74 ; State ex rel. Sadler v. La Grave, 23 Nev. 216 , 45 P. 243, 35 L.R.A. 233; Merriam v. Clinch, 6 Blatch. 5; Chatterton v. Grant, 12 Wyo. 1 , 73 P. 470, 2 Ann. Cas. 382. (7) To provide for filling a public office is inconsistent with maintaining the vacancy. The law abhors a vacancy in public office, and this court should construe the Charter of the City of St. Louis as contemplating filling it if that construction be admissible. Chadwick v. Earhart, 11 Or. 389 , 4 P. 1180. (8) When an officer is required by law to perform the duties of another position not incompatible with the first, he is entitled to the compensation attached to each, in the absence of any law to the contrary. State ex rel. Zevely v. Hackmann, 300 Mo. 59 , 254 S.W. 53 ; Chatterton v. Grant, 12 Wyo. 1 , 73 P. 470, 2 Ann. Cas. 382. (9) Mandamus is the proper remedy to determine the issues herein involved. State ex rel. Schuler v. Nolte, 315 Mo. 84 , 285 S.W. 501 ; State ex rel. Hawes v. Mason, 153 Mo. 23 , 54 S.W. 524; State ex rel. William R. Compton Co. v. Walter, 324 Mo. 290 , 23 S.W.2d 167 . Joseph F. Holland, City Counselor, H.A. Hamilton, George L. Stemmler and Charles J. Dolan, Associate City Counselors, for respondents. (1) The Charter of the City of St. Louis provides that the board of aldermen shall consist of a president, elected as such from the city at large, and twenty-eight members, one from each ward, to be known as alderman for the ward from which elected. Charter, Art. IV, Sec. 1. (2) The Charter of the City of St. Louis provides that, at the general city election in 1917, and every four years thereafter, a mayor and one alderman from each odd-numbered ward shall be elected, each for a term of four years. Charter, Art. II, Secs. 2, 3. At the general city election in April, 1941, Hon. William Dee Becker was elected mayor for a four-year term expiring in April, 1945. At the same election, relator was elected as an alderman from the eleventh ward, for a term expiring in April, 1945. (3) The Charter of the City of St. Louis provides that, at the general city election in 1915, and every four years thereafter, a president of the board of aldermen and one alderman from each even-numbered ward shall be elected, each for a term of four years. Charter, Art. II, Sec. 3. At the general city election in April, 1943, Hon. A.P. Kaufmann was elected president of the board of aldermen for a four-year term expiring in April, 1947. Hon. William Dee Becker came to his untimely death on August 1, 1943. Thereupon, Hon. A.P. Kaufmann became mayor, has been serving as mayor ever since, and will continue to serve until a successor to fill Mayor Becker's unexpired term is elected at the general election in November, 1944. (4) The Charter of the City of St. Louis provides that the board of aldermen shall choose "from its membership" a vice-president "to act in case of the absence, disability, or failure to act of the President." Charter, Art. IV, Sec. 6. Shortly after his election as alderman from the eleventh ward relator was elected vice-president of the board and has been vice-president ever since. (5) The Charter of the City of St. Louis provides that the salary of the president of the board of aldermen shall be three thousand dollars per annum. Charter, Art. IV, Sec. 3. (6) The Charter of the City of St. Louis provides that "The salary of each alderman shall be eighteen hundred dollars per annum." Charter, Art. IV, Sec. 2. (7) The Charter of the City of St. Louis provides that, "whenever a vacancy occurs in the office of mayor"; The presiident of the board of aldermen shall become mayor; while the president of the board of aldermen is so holding the office of mayor, a "temporary vacancy" shall exist in the office of president of the board of aldermen; during such vacancy, the vice-president of the board of aldermen shall "hold" the office of president of the board; while the vice-president of the board is so "holding" the office of president of the board, the vice-president shall have the right of succession to the office of mayor; a successor to serve out the unexpired term of the mayor is to be elected "at the first general city or state election held fifty days or more after such vacancy occurs." Charter, Art. VII, Sec. 5. (8) The intent of the framers of the Charter and of the people who adopted it governs the interpretation to be given to the language of Section 5, Article VII. It is a cardinal rule of construction that, in determining the meaning of a constitution, charter or legislative enactment, effect must be given to each sentence, clause and phrase, and the several sentences, clauses and phrases must, so far as possible, be harmonized with each other. Norberg v. Montgomery, 173 S.W.2d 387 ; State v. Carolene Products Co., 144 S.W.2d 153 . (9) Where, in the same section of a Charter, in dealing with two similar situations arising out of a common occurrence, words are used in connection with the one situation that are different from the words that are used in dealing with the other situation, it must be presumed that different results were intended. It cannot consistently be contended that, in using the words, "shall hold the office of president during any vacancy therein," the Charter intends to accomplish the same purpose as by the use of the words "shall become mayor and shall hold such office." (10) Relator did not "become" the president of the board when Hon. A.P. Kaufmann "became" the mayor. He remained alderman from the eleventh ward and, by reason of the fact that he had been elected by his associate members as vice-president, had imposed upon him, as an incident of that position, the duty of acting for and in the place of the president during the temporary vacancy while the president is serving as mayor. For these additional duties the Charter provides no additional compensation. (11) The right of a public officer to the salary of his office is a right created by law, is incident to the office, and not the creature of contract, and is not dependent upon the fact or volume or value of services actually rendered. 2 McQuillin Mun. Corps. (2nd Ed. Rev.), p. 294; 46 C.J. 1014-1015; 43 Am. Jur. 150; State ex rel. Chapman v. Walbridge, 153 Mo. 194 , 54 S.W. 447; Bates v. St. Louis, 163 Mo. 18 , 54 S.W. 439. (12) The salary of a public officer is strictly limited to that provided by the law for the specific position held by the officer. 2 McQuillin Mun. Corps. (2nd Ed. Rev.), pp. 297, 358; 46 C.J. 1014; Nodaway County v. Kidder, 344 Mo. 735 , 129 S.W.2d 857 ; Holman v. City of Macon, 155 Mo. App. 398 , 137 S.W. 16; State ex rel. Linn County v. Adams, 1074 S.W. 537. (19) The law which is claimed to confer a right to salary upon a public officer must be strictly construed against the officer and in favor of the public. 2 McQuillin Mun. Corps. (2nd Ed. Rev.), p. 297; 46 C.J. 1019; Smith v. Pettis County, 345 Mo. 839 , 136 S.W.2d 282 ; Nodaway County v. Kidder, 344 Mo. 795 , 129 S.W.2d 857 ; Ward v. Christian County, 341 Mo. 1115 , 111 S.W.2d 182 ; Holman v. City of Macon, 155 Mo. App. 398 , 137 S.W. 16.