State ex Rel. Nicolai v. Nolte

Full title: STATE EX REL. EDGAR S. NICOLAI, Relator, v. LOUIS NOLTE, Comptroller of…

Court: Supreme Court of Missouri, Court en Banc

Date published: Jun 5, 1944

180 S.W.2d 740 (Mo. 1944)

180 S.W.2d 740

Opinion

No. 39037.

June 5, 1944.

1. MUNICIPAL CORPORATIONS: Officers: St. Louis Charter: Death of Mayor: Vice-President of Board of Aldermen Becomes President. The Charter of St. Louis provides that upon the death of the mayor the president of the board of aldermen is temporarily relieved of his office in order to become mayor, and the vice-president becomes president.

2. MUNICIPAL CORPORATIONS: Officers: Duties of President not Annexed to Office of Vice-President. The duties of the office of president of the board of aldermen of St. Louis are not merely annexed to the office of vice-president. That occurs when the mayor is absent, but not upon his death. And there are other circumstances where the vice-president merely acts in place of the president.

3. MUNICIPAL CORPORATIONS: Officers: Vice-President Entitled to Salary of President. Since the vice-president takes title to the office of president of the board of aldermen of St. Louis, he takes the salary provided for such office.

4. OFFICERS: Extra Compensation: Salary Attached to Office. Extra compensation for extra services of a public official must be expressly authorized by statute. But so long as an officer holds an office the salary provided for the office belongs to him as an incident to the office.

5. MANDAMUS: Officers: Salary Must be Paid. Since relator holds the office of president of the board of aldermen of St. Louis he is entitled to the salary which the charter provides, and a writ of mandamus should issue.

Mandamus.

PEREMPTORY WRIT ISSUED.

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, 172 Mo. 1, 72 S.W. 655; Chamberlain v. Kansas City, 125 Mo. 430, 28 S.W. 745; Stetler v. McFarlane, 230 N.Y. 408, 130 N.E. 591, 594. (13) Public policy requires that a public officer be denied additional compensation for performing additional official duties that are merely incidents of and germane to his office. 2 McQuillin Mun. Corps. (2nd Ed. Rev.), p. 335; 43 Am. Jur. 151; Nodaway County v. Kidder, supra. (14) One accepting a public office is presumed to do so with full knowledge of the law as to salary and duties, including the possibility of increased duties under certain contingencies, and is presumed to stand ready to discharge all such duties, whatever they may be, for the salary specifically provided for that office. 2 McQuillin. Mun. Corps. (2nd Ed. Rev.), p. 297; 43 Am. Jur. 150; United States v. Smith, 1 Bond 68, 27 Fed. Cas. 1139; Kilroy v. Whitmore, 115 Cal.App. 43, 300 P. 851. (15) Unless the law specifically provides a salary or compensation to a public officer for extra duties or additional duties imposed upon the occurrence of certain contingencies, no extra salary or compensation can be recovered. 2 McQuillin Mun. Corps. (2nd Ed. Rev.), p. 292; 1 Dillon, Mun. Corps. (5th Ed.), sec. 426; 46 C.J. 1017; 43 Am. Jur. 151; Nodaway County v. Kidder, 344 Mo. 795, 129 S.W.2d 857; State ex rel. Linn County v. Adams, 172 Mo. 1, 72 S.W. 655; Chamberlain v. Kansas City, 125 Mo. 430, 28 S.W. 745; Lemoine v. St. Louis, 120 Mo. 419, 25 S.W. 537. (16) Rendition of service by a public officer is deemed gratuitous, unless compensation therefor is specifically provided by statute. Nodaway County v. Kidder, supra; 43 Am. Jur. 139. (17) Where the law provides that one holding a public office shall, by virtue of holding that position, perform the duties of another public office, and no provision is made for salary or compensation for the discharge of the duties of such other office, there can be no recovery by the officer of salary or compensation other than that specifically provided for the specific office to which he has been elected or appointed. 2 McQuillin Mun. Corps. (2nd Ed. Rev.), p. 339; State ex rel. McGrath v. Holladay, 67 Mo. 64; State ex rel. Linn County v. Adams, 172 Mo. 1, 72 S.W. 655; Chamberlain v. Kansas City, 125 Mo. 430, 28 S.W. 745; United States v. Smith, 1 Bond, 68, 72, 5 Am. Law Reg. 268, 27 Fed. Cas. 1139; Neisius v. Henry (Neb.), 5 N.W. 291; Goode v. Union County, 189 Ark. 1123, 76 S.W.2d 100; Bovaird v. City of Bradford, 232 Pa. 600, 81 A. 719; Rothrock v. School District of Easton, 133 Pa. 487, 19 A. 483; McIntosh v. Furth, 26 P. 79; Billings v. The Mayor, 68 N.Y. 413; Chandler v. City of Elgin, 278 P. 581; Anderson v. City of Milwaukee, 88 N.W. 905. (18) A public officer cannot claim additional or greater compensation on the grounds that his duties have been increased. 2 McQuillin Mun. Corps. (2nd Ed. Rev.), p. 338; 46 C.J. 1017; 43 Am. Jur. 151; Bates v. St. Louis, 153 Mo. 18, 54 S.W. 439; Chamberlain v. Kansas City, 125 Mo. 430, 28 S.W. 745; Lemoine v. St. Louis, 120 Mo. 419, 25 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.

[740] DOUGLAS, C.J.

Edgar S. Nicolai, a member and Vice President of the Board of Aldermen of St. Louis has been serving as President of the Board. He brings this original proceeding in mandamus to compel the payment of his salary at the rate provided for the president namely, $3,000 per year. He has been receiving $1,800 a year, the salary provided for a member of the board. No additional salary attaches to the office of vice president. He also wants the difference for the past. We hold he is entitled to the higher rate.

The case turns on the question whether Nicolai, under the circumstances, acts as president as part of his regular duties as vice president or whether he has succeeded to the office itself.

William Dee Becker, the Mayor of St. Louis, died in an airplane accident on August 1, 1943. Upon that event Aloys P. Kaufmann, President of the Board of Aldermen, became Mayor and is now serving in that capacity. Since that date Nicolai, the Vice President of the Board, has served as President of the Board.

[741] Article VII, Section 5 of the St. Louis Charter provides for filling a vacancy in the office of mayor. It states: "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 qualifies. Such election, if for an unexpired term, shall be at the first general city or state election held fifty days or more after such vacancy occurs. While so holding the office of mayor a temporary vacancy shall exist in the office of the president of the board of aldermen. The vice-president of the board of aldermen shall hold the office of president of said board during any vacancy therein with the right of succession to the office of mayor."

The intention of the framers of the charter seems clear that the president of the board was temporarily relieved of his office in order to become mayor. See State ex rel. Gragg v. Barrett et al., 352 Mo. 1076, 180 S.W.2d 730, handed down at the same time as this case. Under the Constitution (Art. IX, sec. 18) a person may not fill two municipal offices at the same time. In obedience to this provision the office of president had to be vacated to permit the president to fill the office of mayor. The charter so provides. To fill the vacancy thus created in the office of the president the charter then provides the vice president of the board "shall hold the office of president." There can be no meaning attached to the use of different words in providing that the president shall become mayor and the vice president shall hold the office of president during any vacancy because the charter also provides that the president shall hold the office of mayor until a successor is elected. Although the charter does not specifically provide, nevertheless it follows that the vice president must become president, for the time being, in order to hold the office. Webster's New International Dictionary defines hold as to own or possess; to be in possession of; to occupy; to derive title to; as to hold office.

Respondents' argument that the office of president continues to be temporarily vacant and its duties merely annexed to the office of vice president is contrary to the express provision of the charter that the vice president shall hold the office. The charter does not provide that the duties of president shall be annexed to the office of vice president; or the vice president under such condition shall act as president; or the vice president shall perform the duties of president. The charter does contain such a provision relating to the office of mayor when the mayor is temporarily disabled or absent. Article VII, Section 3 states: "During the mayor's temporary disability or absence from the city his powers and duties shall devolve upon the president of the board of aldermen, or if said president shall also be absent or disabled upon the vice president of said board." The absence of similar language from the charter provision under consideration is significant of an intention contrary to respondents' argument.

There is a provision of the charter, Article IV, Section 6 which directs that the board of aldermen shall choose from its membership a vice president "to act in the case of absence, disability or failure to act of the president." None of these cases ipso facto cause a vacancy in the office of president. See Article IV, Section 3 and Article VII, Section 4 of the charter. When any of these cases occur the vice president merely acts in place of the president. He does not succeed to the office.

However, in the instant case, the office of president being vacated by the president becoming mayor, the vice president is invested with the office and becomes president. The charter expressly provides the office with a salary of $3,000 per year. Since the vice president takes title to the office, he takes the salary provided for it.

The principles advanced by respondents are firmly established but they do not support respondents' contentions under the facts of this case. It is true that a public official claiming compensation for official duties must point out the statute authorizing the compensation, and, if he does so, the statute will be strictly construed against him. Extra compensation for extra services must be expressly authorized. See Nodaway County v. Kidder, 344 Mo. 795, 129 S.W.2d 857. Extra duties do not automatically bring extra compensation. Bates v. St. Louis, 153 Mo. 18, 54 S.W. 439; Gammon v. Lafayette County, 76 Mo. 675.

There is also a principle equally well fixed that so long as an officer holds his office the salary provided for the office belongs to him because the law attaches it [742] to the office; because it is an incident to the office. Givens v. Daviess County, 107 Mo. 603, 17 S.W. 998; Bates v. St. Louis, 153 Mo. 18, 54 S.W. 439; State ex rel. Evans v. Gordon, 245 Mo. 12, 148 S.W. 638; State ex rel. Langford v. Kansas City (Mo.), 261 S.W. 115; Cunio v. Franklin County, 315 Mo. 405, 285 S.W. 1007.

Inasmuch as Nicolai holds the office of president of the board, he is entitled to the salary which the charter provides. Our peremptory writ of mandamus should issue as prayed.

It is so ordered. All concur.