Opinion
No. 40392.
July 31, 1947.
1. MUNICIPAL CORPORATIONS: Counties: Constitutional Law: Status of St. Louis as County. The City of St. Louis is recognized by the 1945 Constitution both as a municipality and a county. The municipal assembly shall perform any act or duty which the law requires to be performed by a county court.
2. MAGISTRATES: Municipal Corporations: Additional Clerks and Employees: Determination by Board of Aldermen. By enacting an ordinance the St. Louis Board of Aldermen, acting in its capacity as a county court, has determined the need of the magistrates' court for additional clerks and other employees.
3. MAGISTRATES: Municipal Corporations: Statutes: Provisions of St. Louis Ordinance for Clerks Invalid. The provision of the ordinance for a chief clerk and two deputy clerks of the St. Louis magistrates' court to be paid by the city is in conflict with a statute and is invalid.
4. MAGISTRATES: Municipal Corporations: Statutes: St. Louis Magistrates Court: Ordinance for Additional Employees Valid. An ordinance of the City of St. Louis providing for additional employees for the magistrates' court is not in conflict with statutes.
5. STATUTES: Municipal Corporations: Valid Portion of Ordinance Separable. The valid portion of the ordinance is separable from the void part and may be upheld.
6. MUNICIPAL CORPORATIONS: Approval of Board of Estimate and Apportionment Not Required. A recommendation by the Board of Estimate and Apportionment of St. Louis was not required when the Board of Aldermen enacted an ordinance creating certain positions and fixing their salaries. This was not an appropriation ordinance.
7. MANDAMUS: Relief Sought Too Extensive: Writ Quashed. Since the relators pray for relief part of which should not be granted and have not asked to amend, the writ should be quashed.
WRIT QUASHED.
Alroy S. Phillips for relators.
(1) This court has original jurisdiction in mandamus. Constitution of 1945, Secs. 3, 5, Art. V; Constitution of 1875, Sec. 3, Art. VI. (2) Relators have the right to sue in mandamus. Relators are a court of record of the state charged with the duty of administering justice. Constitution of 1945, Secs. 1, 18, 19, Art. V; Constitution of 1945, Sec. 14, Art. I; 1945 Senate Bill No. 207, sec. 19; 1945 Senate Bill No. 239, sec. 1. (3) At common law, as a court relators have the inherent power to provide themselves with clerks and other necessary instrumentalities. 21 C.J.S., pp. 28, 214; State ex rel. Gentry v. Becker, 351 Mo. 769, 174 S.W.2d 181. (4) Mandamus lies on behalf of relators to compel other public officers to obey laws ancillary to their duty to administer justice. State ex rel. Zoological Board v. St. Louis, 318 Mo. 910, 1 S.W.2d 1021; State ex rel. Beach v. Beach, 325 Mo. 175, 28 S.W.2d 105; State ex rel. Wolfe v. Bronson, 115 Mo. 271, 21 S.W. 1125; State ex rel. Hawes v. Mason, 153 Mo. 23, 54 S.W. 524; State ex rel. McCaffery v. Mason, 155 Mo. 486, 55 S.W. 636; State ex rel. Gentry v. Becker, 351 Mo. 769, 174 S.W.2d 181; State ex rel. McNeil v. St. Louis County Court, 42 Mo. 496. (5) The proper construction of the proviso in Section 21 of Senate Bill No. 207 is that it confers authority on the county courts to provide, at the expense of the county, such additional clerks and other employees as may be needed by the magistrates who are not "additional magistrates" ordered by the circuit court. Constitution of 1945, Sec. 18, Art. V; 1945 Senate Bill No. 207, Secs. 1, 17, 21, 22, 23, 23a; 1945 Senate Bill No. 251, sec. 2102; Castilo v. State Highway Comm., 312 Mo. 244, 279 S.W. 673. (6) There is no conflict between Senate Bills 207 and 239 as to additional clerks and employees. 1945 Senate Bill No. 207, sec. 21; 1945 Senate Bill No. 239, secs. 2 and 5; St. Louis v. Klausmeier, 213 Mo. 119, 112 S.W. 516. (7) Senate Bill 239 is applicable to the City of St. Louis because it is a city in a county of the same name. Prior to the Constitution of 1875 the legislature chartered all cities and fixed and changed all county boundaries. Kansas City v. J.I. Case Threshing Mach. Co., 337 Mo. 913, 87 S.W.2d 195; Opinion of Supreme Court Judges, 55 Mo. 295; Pool v. Brown, 98 Mo. 675, 11 S.W. 743. (8) The Constitution of 1875 took away the legislature's power to change county boundaries, authorized the consolidation of city and county governments, and authorized the City of St. Louis and other large cities to adopt charters for city government. Constitution of 1875, Secs. 3, 4, 15, 16-25, Art. IX; Scheme of Separation, Secs. 1, 2, R.S. 1939, p. 3975; Charter of St. Louis, R.S. 1879, pp. 1572-1627; Charter of St. Louis, adopted June 30, 1914. (9) By judicial decisions and the Constitution of 1945 the charter of the City of St. Louis has been stripped of all purely county matters and the city is now a city in a county of the same name, and Senate Bill 239 is applicable thereto. 1945 Senate Bill No. 239, secs. 1, 5, 6, 7 and 10; Constitution of 1945, Sec. 31, Art. VI; Constitution of 1945, Sec. 17, Art. VI; Sec. 655, R.S. 1939, clause nineteenth; Lovins v. St. Louis, 336 Mo. 1194, 84 S.W.2d 127; State ex rel. Harvey v. Sheehan, 269 Mo. 421, 190 S.W. 864; State ex rel. Carpenter v. St. Louis, 318 Mo. 870, 2 S.W.2d 713; State ex inf. McKittrick v. Dwyer, 343 Mo. 973, 124 S.W.2d 1173; State ex inf. Barker v. Koeln, 270 Mo. 174, 192 S.W. 748; Kansas City v. J.I. Case Threshing Mach. Co., 337 Mo. 913, 87 S.W.2d 195. (10) The board of aldermen is the county court of the County of the City of St. Louis. 1945 Senate Bill No. 207, sec. 21; Scheme of Separation, Sec. 24, R.S. 1939, p. 3981; R.S. 1939, secs. 15744-45; Charter of St. Louis, Sec. 1, Art. III; R.S. 1879, p. 1582; Charter of St. Louis of 1914, Sec. 1, Art. IV; State ex rel. Lefman v. Schuler, 317 Mo. 671, 296 S.W. 808; State ex rel. Dwyer v. Nolte, 351 Mo. 271, 172 S.W.2d 854. (11) The additional clerks and employees provided by Ordinance No. 43,940 are necessary for relators properly to conduct their court. St. Louis Ordinance No. 43,940; 1945 Senate Bill No. 207, sec. 21. (12) Ordinance No. 43,940 does not require the recommendation of respondent Board of Estimate and Apportionment. The Board of Estimate and Apportionment is not mentioned in the Constitution or statutes and no power is conferred on it thereby. 1945 Senate Bill No. 207, sec. 21; St. Louis Charter of 1914, Sec. 25, Art. IV; St. Louis Ordinance No. 43,940; State ex rel. Mulvoy v. Miller, 315 Mo. 41, 285 S.W. 504; Scheme of Separation, Sec. 24, R.S. 1939, p. 3981; Secs. 15,744-45, R.S. 1939. (13) The board of aldermen as a county court is a mere ministerial body, and the delegation to it of authority to provide additional clerks and employees is the delegation of an administrative power and not an unauthorized delegation of legislative power. Constitution of 1945, Sec. 7, Art. VI; Constitution of 1875, Sec. 36, Art. VI; Lusk v. Atkinson, 268 Mo. 109, 186 S.W. 703; Mo. Southern R. v. Pub. Serv. Comm., 279 Mo. 484, 214 S.W. 379; State ex rel. Jenkins v. Brown, 323 Mo. 382, 19 S.W.2d 484; State ex rel. Laundry v. Pub. Serv. Comm., 327 Mo. 93, 34 S.W.2d 43; State ex rel. Consumers Pub. Serv. Co. v. Pub. Serv. Comm., 352 Mo. 905, 180 S.W.2d 40; State ex rel. Rhodes v. Pub. Serv. Comm., 270 Mo. 547, 194 S.W. 287; Marsh v. Bartlett, 343 Mo. 526, 121 S.W.2d 737; Field v. Clark, 143 U.S. 649, 12 S.Ct. 495; United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480. (14) The General Assembly had power to provide additional clerks and employees at the expense of the county. The administration of justice is a state governmental function of the highest order and relator's court is part of the judicial system of the state. Constitution of 1945, Secs. 2, 14, Art. I; Constitution of 1945, Art. II; Constitution of 1945, Secs. 1, 18-21, Art. V; 1945 Senate Bills Nos. 207 and 239. (15) The taxing power belongs to the state, and the city derives its tax power from its charter and by statutes. Constitution of 1945, Secs. 1, 11, Art. X; St. Louis v. Sternberg, 69 Mo. 289; 1945 House Committee Substitute for House Bill No. 606. (16) Taxes collected by cities and counties can be appropriated by the general assembly for the expenses of state courts. State ex rel. Aull v. Field, 119 Mo. 593, 24 S.W. 742; Kansas City v. J.I. Case Threshing Mach. Co., 337 Mo. 913, 87 S.W.2d 195; State ex rel. Lynn v. Board of Education, 141 Mo. 45, 41 S.W. 924; State ex rel. Faxon v. Owsley, 122 Mo. 68, 26 S.W. 659; State ex rel. Hawes v. Mason, 153 Mo. 23, 54 S.W. 524; State ex rel. McCaffery v. Mason, 155 Mo. 486, 55 S.W. 536; State ex rel. Zoological Board v. St. Louis, 318 Mo. 910, 1 S.W.2d 1021; State ex rel. Carpenter v. St. Louis, 318 Mo. 870, 2 S.W.2d 713; State ex rel. Dwyer v. Nolte, 351 Mo. 271, 172 S.W.2d 854. (17) Section 21 of Senate Bill 207 is an appropriation of the city's tax money by the state and no appropriation bill for money therefor by respondent aldermen is necessary or proper. 1945 Senate Bill No. 207, sec. 21; State ex rel. Hawes v. Mason, 153 Mo. 23, 54 S.W. 524; State ex rel. Dwyer v. Nolte, 351 Mo. 271, 172 S.W.2d 854. (18) It is the duty of respondent Comptroller to audit and draw his warrants for the salaries of the clerks and employees appointed by relators under Ordinance No. 43,940, and of respondent city to pay them, and mandamus lies to compel them to perform such duties. 1945 Senate Bill No. 207, sec. 21; St. Louis Ordinance No. 43,940; 1945 Senate Bill No. 251, sec. 2102; 1914 St. Louis Charter, Sec. 2, Art. XIV; State ex rel. Hawes v. Mason, 153 Mo. 23, 54 S.W. 524; State ex rel. Zoological Board v. St. Louis, 318 Mo. 910, 1 S.W.2d 1021; State ex rel. Carpenter v. St. Louis, 318 Mo. 870, 2 S.W.2d 713; State ex rel. Beach v. Beach, 325 Mo. 175, 28 S.W.2d 105 George L. Stemmler, City Counselor, and Thos. J. Neenan, Associate City Counselor, for respondents.
(1) Adequate provision has been made by statute to provide relators with clerks and other necessary instrumentalities. Therefore the inherent power of the court must yield to those statutes. 21 C.J.S. 28. (2) Mandamus will not lie against the officer of a legislative body when such officer is acting in his legislative capacity and performing his legislative function and duty. It would be a usurpation of the power of the court to assume jurisdiction of government which belongs exclusively to the law-making body. State ex rel. v. Bolte, 151 Mo. 362; Albright v. Fisher, 164 Mo. 56. (3) In order to determine the proper meaning of the proviso in Section 21 of Senate Bill 207, all the provisions of the Constitution and statutes regulating magistrate courts must be considered and the proper interpretation gathered from the whole. City v. Senter Commission Co., 85 S.W.2d 21, 337 Mo. 238. (4) The Constitution provides that the General Assembly shall provide for the administration of magistrate courts consistent with the Constitution. Missouri Constitution 1945, Art. V, Sec. 21. (5) Senate Bill 239 authorizes additional clerks for the magistrate courts in St. Louis. 1945 Senate Bill 239, secs. 2, 3 and 5. (6) There is no authority in Senate Bill 207 for the appointment of the employees authorized in Ordinance 43940, known as Board Bill 458. 1945 Senate Bill 207, sec. 21; Constitution of Missouri, 1945, Sec. 18, Art. V; 1945 Senate Bill 207, secs. 21, 1, 17, 23a, 20, 6, 17 and 22; 1945 Senate Bill 239, secs. 5 and 6; St. Louis Ordinance 43940. (7) There is no conflict between Senate Bill 207 and Senate Bill 239 but one supplements the other. 1945 Senate Bill 207, secs. 1, 17, 21, 22; 1945 Senate Bill 239, secs. 3, 5. (8) These respondents state that Senate Bill 239 is applicable to the City of St. Louis. (9) The Board of Aldermen of the City of St. Louis, when it acts as a county court, is bound to act in accordance with the provisions of the Charter of the City of St. Louis except where said Charter conflicts with the Constitution or any general law of the State. Charter of the City of St. Louis, Sec. 25, Art. IV; Baum v. City of St. Louis, 123 S.W.2d 48. (10) The Constitution provides that the General Assembly shall provide for the administration of magistrate courts, and it has by statute designated the number of clerks and other employees it deems necessary for the operation of said courts. Constitution of 1945, Art. V. Sec. 22; Senate Bill 207, secs. 23, 17, 22; 1945 Senate Bill 239, secs. 3, 5 and 6. (11) Ordniance 43940 requires the recommendation of the Board of Estimate and Apportionment. The said ordinance fixes the number and salaries of the additional clerks and employees authorized by it and therefore is an ordinance which contemplates and involves the payment of money by the City of St. Louis. St. Louis Ordinance 43940, secs. 1 and 2; State ex rel. Mulvoy v. Miller, 15 Mo. 41, 285 S.W. 504; Scheme of Separation, Sec. 24. (12) If, as relators contend, respondent aldermen as a county court are acting as a mere administrative agent of the General Assembly under authority by it delegated to carry out a legislative state purpose, this is an unconstitutional delegation of power because the General Assembly has delegated its unquestioned power to legislate to a mere ministerial body. State ex rel. Hawes v. Mason, 153 Mo. 23, 54 S.W. 524. (13) Whether or not the General Assembly had power to provide additional clerks, is an irrelevant question for the reason that the General Assembly did not undertake to exercise such alleged power. (14) Section 21 of Senate Bill 207 is not an appropriation of the City's tax money by the state. St. Louis Charter of 1914, Sec. 2, Art. XV. (15) Either a statute or an appropriation ordinance is necessary before the comptroller is authorized to audit or draw his warrant for the salaries contemplated under Ordinance No. 43940, therefore relators cannot proceed in mandamus.
This is an original proceeding in mandamus to compel respondents, the city of [236] St. Louis, Aloys P. Kaufmann as mayor and Louis Nolte as comptroller, to draw, or cause to be drawn, warrants for the salaries of the clerks and employees provided in ordinance No. 43940 of the city of St. Louis, as they may be appointed and certified by relators; to compel the respondents, Board of Aldermen of the city of St. Louis, to enact, if necessary, an appropriate ordinance to pay their salaries; and to compel the Board of Estimate and Apportionment to approve, if necessary, that ordinance.
The relators are the judges of the magistrate court of the city of St. Louis. The respondents are the city of St. Louis, the mayor, the comptroller and the president of the Board of Aldermen, constituting the Board of Estimate and Apportionment of that city, and the members of the Board of Aldermen.
The respondents filed their return to our alternative writ, that is, with the exception of the aldermen and their president who did not file a return. Relators filed a motion for judgment on the pleadings.
Relators are the first judges of the magistrate court of the city of St. Louis, which court was created by our Constitution of 1945. They took office January 1, 1947, and organized themselves into a court of record. This court consists of an assignment division, with a central office, and a division for each of the nine magistrates with a deputy clerk in each division whose salaries are paid by the state.
On January 10, 1947, the Board of Aldermen, over the veto of the mayor and without the recommendation of the Board of Estimate and Apportionment, enacted ordinance No. 43940, the material parts of which are as follows:
"Section One. The Magistrate Court of the City of St. Louis, in banc, is hereby authorized to appoint one Chief Clerk and two Deputy Clerks, and in addition thereto, for the proper dispatch of the business of said Magistrate Court, one Cashier, one bookkeeper, one assistant cashier, one assistant bookkeeper, two stenographers and one messenger.
"Section Two. The salary of the Chief Clerk shall be Five Thousand ($5,000.00) Dollars per annum; the salary of each deputy Clerk shall be Twenty-four Hundred ($2400.00) Dollars per annum; the salary of the Cashier shall be Thirty-six Hundred ($3600.00) Dollars per annum; the salary of the Assistant Cashier shall be Three Thousand ($3,000.00) Dollars per annum; the salary of the Book-keeper shall be Thirty-six Hundred ($3600.00) Dollars per annum; the salary of the assistant bookkeeper shall be Three Thousand Dollars ($3000.00) per annum; the salary of each stenographer shall be Twenty-one Hundred ($2100.00) Dollars per annum; and the salary of the Messenger shall be Eighteen Hundred ($1800.00) Dollars per annum; all of which salaries shall be paid by the City of St. Louis, Missouri."
Respondents contend that the above ordinance is illegal because it was not authorized by the Constitution of Missouri, Senate Bill 207, Laws of 1945, page 765, or Senate Bill 239, Laws of 1945, page 807, and for the further reason that the recommendation of the Board of Estimate and Apportionment was necessary for the proper enactment of this ordinance.
Pursuant to Section 21 of Article V of the Constitution, the Legislature enacted Senate Bills 207 and 239 which provide for the administration of magistrate courts of this state.
Senate Bill 239 deals only with the magistrate court in the city of St. Louis, while Senate Bill 207 deals with magistrate courts of the state at large.
The validity of ordinance No. 43940 depends upon whether these two bills authorized the Board of Aldermen to enact this ordinance.
The pertinent parts of Senate Bill 239 are as follows:
"Section 2. . . . all the provisions of general law applicable to magistrates, their courts and officers, shall be applicable to the courts, magistrates and officers provided in this act except so far as inconsistent therewith."
[237] "Section 3. Each such magistrate court in banc shall be composed of all the magistrates, and each division thereof shall be composed of at least one magistrate. The court may appoint from its number a chief magistrate, and may appoint and remove at its pleasure a chief clerk and not more than two deputy clerks, and a chief constable from among the constables. Each magistrate may appoint and remove at his pleasure one deputy clerk."
"Section 5. The salaries of the magistrates and clerks of the court shall be fixed and paid as provided by general law for other magistrates and clerks in such counties, except that the annual salary of each magistrate shall be $6,000.00."
The pertinent parts of Senate Bill 207 are as follows:
"Section 1. Magistrates, as herein provided for, shall be elected at the general election to be held in 1946, and every four years thereafter, and shall hold their offices for four years, or until their successors are elected or appointed, commissioned and qualified; . . . In counties of 100,000 inhabitants or more there shall be two magistrates and one additional magistrate for each additional 100,000 inhabitants, or major fraction thereof. According to the needs of justice, in counties of more than 30,000 inhabitants, the foregoing number of magistrates in any county may be increased by not more than two, or such increased number may be decreased, by order of the circuit court. . . ."
"Section 17. The salaries of all magistrates shall be paid by the state, except that the state shall not pay the salaries of additional magistrates whose offices are created by order of the circuit court as provided for in Article V, Section 18 of the Constitution; but the districts assigned to such additional magistrates shall be designated as 'additional magistrate districts' and the salaries of such magistrates shall be paid by the county."
"Section 21. In all counties each magistrate shall by an order duly made and entered of record appoint and fix the salary of a clerk of his court and may appoint such deputies and employees as may be necessary for the proper dispatch of the business of his court and fix their salaries at such sum as in his discretion may seem proper. The total salaries of clerk, deputies and other employees paid by the state shall in no event exceed the annual amount fixed in this act for clerk and deputy clerk hire of such courts, provided, that in any county where need exists, the county court is hereby authorized, at the cost of the county, to provide such additional clerks, deputy clerks or other employees as may be required. All such clerks, deputies and employees shall serve at the pleasure of the magistrate."
"Section 22. Salaries of clerks, deputy clerks and employees provided for in the last preceding section shall be paid by the state within the limits herein provided upon requisition filed by the judge of the magistrate court; except that the salaries of clerks, deputy clerks and employees of additional magistrates whose offices are created by order of the circuit court as provided in Section 1 of this act shall be paid by the county as the salaries of such magistrates are required to be paid. The total amount that may be paid by the state in any one year for such clerks, deputy clerks and employees of the magistrate courts in the different counties shall not exceed the following sums: . . . in all counties now or hereafter having a population in excess of 100,000 inhabitants, the sum of $3000 for each magistrate in the county. The salaries of such clerks, deputy clerks and employees shall be fixed by the magistrate, or magistrate court if the magistrates are organized into a court with divisions."
"Section 23. Upon the commencement of any proceedings in the magistrate court the party commencing the same shall pay to the clerk of said court a magistrate fee of five dollars ($5.00). The fees herein provided shall be charged against the losing party, and if recovered from said party the same shall be repaid to the party making the deposit of such fee. Except as provided in Section 23a of this act, it shall be the duty of each clerk of the magistrate court, with the approval of the magistrate to charge upon behalf of the State every fee that accrues in his office and to receive the same, and at [238] the end of each month, pay over to the director of revenue all monies [moneys] collected by him as fees, taking two receipts therefor, one of which he shall immediately file with the director of revenue, and shall at the end of each quarter make out an itemized and accurate list of all fees in his office, in which list shall be itemized all fees collected by him and also all fees due his office which have not been paid, giving the name of the person or persons paying or owing the same, and turn the same over to the director of revenue, stating that he has been unable, after the exercise of diligence, to collect the part unpaid, said report to be verified by affidavit, and it shall be the duty of the director of revenue to cause the fees unpaid within one year from the date accrued to be collected by law.
"All magistrate fees received by the director of revenue shall be deposited by him with the state treasurer in a special fund to be denominated 'magistrate fund', and all moneys in said fund shall be used exclusively for the payment of salaries of magistrates, their clerks, deputies and employees; provided, however, that such salaries may also be paid from the general revenue of the state whenever either the balance in the magistrate fund or the appropriation from such fund is insufficient to pay such salaries."
"Section 23a. In all cases where additional magistrates are selected to fill offices created by order of the circuit court as provided in Section 1 of this act, it shall be the duty of the clerk of each such magistrate court, with the approval of the magistrate to charge upon behalf of the county every fee that accrues in his office and to receive the same, and at the end of each month pay over to the county treasurer all moneys collected by him as fees taking from said treasurer two receipts therefor, one of which he shall immediately file with the county clerk, and at the end of each quarter such magistrate shall make out an itemized and accurate list of all fees in his office, in which list shall be itemized all fees collected by him and also all fees due his office which have not been paid, giving the name of the person or persons owing the same and turn the same over to the county treasurer stating that he has been unable after the exercise of due diligence to collect the part unpaid, said report to be verified by affidavit.
"All magistrate fees received by the county treasurer shall be deposited by him in a special fund to be denominated 'additional magistrate fund', and withdrawals may be made during the current fiscal year only for the payment of salary of additional magistrate and clerks, deputy clerks and employees of such additional magistrate. The balance, if any, remaining in said fund at the end of the year may be transferred to the general revenue fund of the county."
The city of St. Louis is recognized both as a municipality and a county. Section 31, Article VI of the 1945 Constitution. Sections 15744 and 15745, Mo. R.S.A., provide that the municipal assembly of St. Louis shall perform any act or duty which the law requires to be performed by a county court. State ex rel. Dwyer v. Nolte, 351 Mo. 271, 172 S.W.2d 854. This fact is admitted by all parties to this action.
In deciding this case it is necessary to construe Senate Bills 207 and 239 together. Section 2 of Senate Bill 239 specifically says that all the provisions of general law (Senate Bill 207) shall be applicable except so far as inconsistent therewith.
To uphold the legality of the ordinance in question, the relators rely mainly upon the following provision of Section 21 of Senate Bill 207: ". . . provided, that in any county where need exists, the county court is hereby authorized, at the cost of the county, to provide such additional clerks, deputy clerks or other employees as may be required." There can be no doubt that the Board of Aldermen, acting in its capacity as a county court, had the right to determine the need for additional clerks, deputy clerks and other employees at the expense of the city. By enacting ordinance No. 43940 the Board determined that the clerks, deputy clerks and other employees provided by that ordinance were needed.
First, respondents contend that the Board of Aldermen had no authority to appoint [239] one chief clerk and two deputy clerks under Senate Bills 207 and 239 for the reason that they are provided for by Section 3 of Senate Bill 239 and their salaries are to be paid by the State. With this we agree. That section provides that the magistrate court in banc "may appoint and remove at its pleasure a chief clerk and not more than two deputy clerks, . . . Each magistrate may appoint and remove at his pleasure one deputy clerk." Section 5 of this bill states that "the salaries of the magistrates and clerks of the court shall be fixed and paid as provided by general law for other magistrates and clerks in such counties, . . ." Section 21 of Senate Bill 207 only authorizes additional clerks where the need exists. The chief clerk and two deputy clerks are not additional clerks, as they are specifically provided for in Senate Bill 239. The general law for magistrates (Section 22 of Senate Bill 207) provides that the salaries of clerks shall be paid by the State, except those clerks for additional magistrates created by order of the circuit court whose salaries are provided for in Section 23a of Senate Bill 207. In fact, the relators in their briefs admit that the salaries of all positions created by Senate Bill 239 are payable by the State.
It therefore follows that the Board of Aldermen of the city of St. Louis does not have the authority to provide for a chief clerk and two deputy clerks to be paid for by the city.
Respondents contend that the Board of Aldermen has no authority under Senate Bills 207 and 239 to provide for the cashier, bookkeeper, assistant cashier, assistant bookkeeper, two stenographers and a messenger. Respondents do not deny that these positions would not come under the classification of "other employees" in the proviso in Section 21 of Senate Bill 207, but they do contend that that proviso applies only to additional magistrates that are created by the circuit court as authorized by Section 1 of Senate Bill 207.
Section 17 of Senate Bill 207 provides that the salaries of all magistrates shall be paid by the state except the salaries of additional magistrates whose offices are created by order of the circuit court. Section 22 of that bill provides that the salaries of clerks, deputy clerks and other employees shall be paid by the State except those salaries of clerks, deputy clerks and employees of additional magistrates whose offices are created by order of the circuit court. Section 23 provides that all fees that accrue to the office of magistrate shall be paid over to the director of revenue and shall be deposited by him with the state treasurer in a special fund denominated "magistrate fund." This fund shall be used for the payment of salaries of magistrates, their clerks, deputy clerks and employees except as provided in Section 23a. That section provides that all fees collected in additional magistrate offices created by order of the circuit court shall be paid over to the county treasurer, and such fees shall be deposited by the county treasurer in a special fund denominated "additional magistrate fund" to be used to pay the salaries of the additional magistrate, and clerks, deputy clerks and employees.
Section 21 provides for the appointment and the fixing of salaries of clerks, deputy clerks and employees of magistrate courts. We think the first sentence of this section applies to both the magistrate court and additional magistrates. It reads: "In all counties each magistrate shall by an order duly made and entered of record appoint and fix the salary of a clerk of his court and may appoint such deputies and employees as may be necessary for the proper dispatch of the business of his court and fix their salaries at such sum as in his discretion may seem proper." This sentence does not distinguish between the magistrate created by this act and the additional magistrate created by order of the circuit court. It is general and applies to both types of magistrates. If it were intended not to apply to the additional magistrate, certainly the exceptions so plainly stated in sections 17, 22 and 23 would have been included in section 21.
It is true section 3 of Senate Bill 239 provides for a chief clerk and not more than two deputy clerks for the court in banc, but section 2 of that act says that the provisions of the general law, that is, Senate Bill 207, shall be applicable to the act [240] creating the magistrate court of St. Louis. There is no inconsistency between section 3 of Senate Bill 239 and section 21 of Senate Bill 207.
We therefore hold that the Board of Aldermen, acting in its capacity of a county court, has the power to provide, for the proper dispatch of the business of the magistrate court of the city of St. Louis, one cashier, one bookkeeper, one assistant cashier, one assistant bookkeeper, two stenographers and one messenger.
The fact that the Board of Aldermen did not have the power to provide for a chief clerk and two deputy clerks does not invalidate the ordinance. The general rule is that where an ordinance consists of several distinct and independent parts, some of which are void because in contravention of a state statute, this does not affect the validity of other independent provisions of the ordinance. 43 C.J. 549, sec. 857; State ex inf. McKittrick ex rel. City of Springfield v. Springfield City Water Co., 345 Mo. 6, 131 S.W.2d 525. The ordinance in question is separable. If we eliminated the void parts of this ordinance it would read: "The magistrate court of the city of St. Louis, in banc, is hereby authorized to appoint for the proper dispatch of the business of said magistrate court, one cashier, one bookkeeper, one assistant cashier, one assistant bookkeeper, two stenographers and one messenger."
Respondents next contend that since the ordinance contemplates and involves the payment of money, it is void because it has not been recommended by the Board of Estimate and Apportionment. Even if the Board of Aldermen had been acting under its powers granted by the city charter, and not as a county court, it would not be necessary to first have the approval of the Board of Estimate and Apportionment because this is not an appropriation ordinance. It only creates certain positions and fixes the salaries for these positions. This point was ruled against respondents in the case of State ex rel. Mulvoy v. Miller et al., 315 Mo. 41, 285 S.W. 504, l.c. 508, wherein we said:
"Furthermore, section 3 of article 16 of the charter clearly indicates that the appropriation bill to be submitted and recommended by the board of estimate and apportionment to the board of aldermen is the ordinance or bill that contemplates and involves the payment of the salary here fixed, and no other bill or ordinance does. Article 16, which deals exclusively with the board of estimate and apportionment, indicates no power or duty on the part of this body to recommend any except appropriation ordinances. Above section 25 of article 4 must be construed in the light of the charter powers of this board. Respondents' claim would make the legislative branch of the city government subservient to the will of the board of estimate and apportionment in all matters even remotely looking to the expenditure of money. The charter gives this board no such power. Its recommendation is required only in connection with appropriation bills or their equivalent."
The prayer of relators' petition for mandamus asked us to direct respondents to take the necessary steps to pay the salaries of the clerks and employees provided in ordinance No. 43940. We have already ruled that that part of the ordinance which provides for a chief clerk and two deputy clerks is invalid. Under this situation our writ must be quashed, for the rule is well settled that in mandamus "he who seeks mandamus 'must specify just what he wants, nothing more or less.' School District No. 11 v. Lauderbaugh, 80 Mo. 190; State ex rel. Dick Bros. Quincy Brewery Co. v. Quincy, O. K.C.R. Co., 199 Mo. App. 668, 204 S.W. 584; State ex rel Mills et al. v. Turnage et al., 217 Mo. App. 278, 263 S.W. 497; State ex rel. Cook v. Kelly et al., Mo. App., 142 S.W.2d 1091 Thus, unless we can grant the relief sought, we can grant no relief" State ex rel. Black v. Renner et al., 235 Mo. App. 829, 148 S.W.2d 809, l.c. 811. See, also, State ex rel. St. Louis County v. St. Johns-Overland Sanitary Sewer District et al., 353 Mo. 974, 185 S.W.2d 780. It is true that relators could have asked to amend our alternative writ, but this case was submitted to this Court without such request. State ex rel. Beach et al. v. Beach et al., 325 Mo. 175, 28 S.W.2d 105.
[241] Since our writ must be quashed, we deem it unnecessary to discuss other points raised in the briefs.
From what we have said, it follows that our writ should be quashed. It is so ordered. All concur.