| Mo. | Jul 6, 1897
— This is an original action in which the relator seeks a peremptory mandamus against Mr. Brown, as auditor of the city of St. Louis. An alternative writ was issued and defendant made return thereto. To the new matter in the return the relator replied. The cause was then argued and submitted, as upon a motion for a peremptory writ. The sufficiency of the return is the only issue presented. The decisive facts are mutually admitted.
Mr. Murray, the relator, was duly appointed - by' the police commissioners a policeman in the city of St. Louis in April, 1875. At a later period he was promoted to the rank of sergeant. In October, 1895, the board of police commissioners, in due form, retired him upon half pay ($50 per month) in pursuance of the terms of the Act of 1895 concerning the police force of the city.of St. Louis. (Laws 1895, p. 234).
In July, 1896, the Municipal Assembly of St. Louis, by ordinance, appropriated $800,000 for the salaries of various members of the police force.' A further large sum was appropriated at the same time for the payment of other specified expenses incident to the proper management of the police department for the current fiscal year. The amount of these appro-' priations has not yet been fully expended. The ordinance by which they were made (to quote from the return) expressly specified the particular objects for which said money was appropriated. The payment of salaries to relator and other persons who had been retired upon half pay (or, in other words, pensioned, pursuant to the acts of 1891 and 1895) was not included in said appropriation; but said appropriation for salaries was expressly limited to the persons in said
It is the practice of the board of police commissioners, under the law, to make out each month a payroll, in duplicate, properly signed, and the same is then presented to defendant by way of showing the names of persons entitled to pay for services on the police force.
Section 14 of article 5 of the city charter provides that “no money shall be expended, nor shall any improvement be ordered involving an expenditure of money, except by ordinance, the provisions of which shall be specific and definite.” (R. S. 1889, p. .2114, sec. 14).
It may be conceded for the occasion .(though there is a controversy on that point) that a proper pay-roll was made out (and exhibited to defendant as city auditor) showing relator to be entitled to collect his half pay as a retired police sergeant for the month of September, 1896, and that a due demand was made of defendant to audit the item of account in which the relator is interested. Defendant admits that he did not audit or approve said account or item. Thereupon relator instituted this action to compel defendant to audit the relator’s said claim for his half pay as sergeant on the retired list, as called for by the said pay-roll.
1. A question has been raised touching the constitutionality of the Acts of 1891 and 1895 (Laws 1891, p. 184; Laws 1895, p. 234) which provide
2. The principal laws governing the police force of St. Louis are found in the appendix to the last revision of the statutes (R. S. 1889, p. 2192, art. 29). There are also some parts of the city charter (besides the one already quoted) which have a vital bearing on the case, viz:
Sec. 16 óf art. 16. “All claims against the board of police commissioners, including salaries, shall be paid out of the city treasury in the same manner as other claims against the city are paid; said claims shall be certified to by the president and secretary of said board, and audited as provided in this Charter for claims against the city; and all acts or parts of acts inconsistent with or in conflict with this section are hereby repealed.”
No question is started as to the validity of that part of the city charter just quoted. Unless it is valid, this action against the city auditor could not be maintained. For under the old law (sec. 16 of the Police Act, R. S. 1889, p. 2197, sec. 16) the remedy for the relator’s case would necessarily be sought by means of some process against the Police Board itself. So we accept, for the present, the relator’s theory that the city is bound for the claims against the Board to the extent of the appropriations therefor. Beyond that limit the demand for a mandamus against the auditor could not be maintained. If the city itself was defendant, a broader issue would be presented. But a mere auditing officer of a municipal government (such as the charter of St. Louis defines) can not be compelled to
Even if the city was in duty bound to make an appropriation to pay the relator’s claim, the auditor could not be required to audit or approve the claim in advance of the proper appropriation.
The only question then that remains is whether the ordinance ( appropriating funds for police salaries and expenses) can reasonably and fairly be construed to provide for the payment of claims of the sort held by the relator, Sergeant Murray. The ordinance provides for payment of salaries of the chief, eight captains,
The funds set apart for the objects named in the ordinance are not exhausted. Relator’s learned counsel argues that by the proviso quoted above the Board is invested with a discretion as to the mode of expending any surplus of funds beyond those needed for salaries of the active force. True! But only within the scope of the proviso! Relator’s claim is not shown to fall within its terms. His'claim is simply for salary as sergeant on the retired list, under the pension Acts. The pay-roll itself shows that On its face. The city has refused (or at least omitted) to make any appropriation for such claims, and hence the city auditor can not by manclcmms be compelled to audit the claim.
Whether or not the city could be required to make an appropriation to pay claims of that nature is not a question in the present case. Anything that might be written on that subject would therefore be unnecessary to the judgment and of no authoritative force.
A peremptory writ is denied.